Earlier this month, the Bipartisan Legal Advisory Group (BLAG) who is defending DOMA in court challenges, noted in a filing that they would be petitioning the Supreme Court for certiorari, or review, by the end of the month. Today BLAG filed its petition. A petition for certiorari is the first attempt to frame the issues the Supreme Court will decide. Petitions have a list of "Questions Presented" that the Supreme Court may or may not decide to hear. (The Supreme Court can also add its own question(s) and possibly ask for briefing on any additional issues.) The questions presented here are:
(1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; andThe "previously unknown" standard of review the petition cites refers to the First Circuit's rational basis review that included both a more searching form of review that regarded laws which might be based on animus toward a particular group as suspicious, as well as a stronger focus on DOMA's impact on federalism.
(2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review
The petitioners ask the Court to take the case because:
As the First Circuit recognized, this case calls out for this Court’s review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the establishedworld of equal protection law that result should have been impossible.The petition also suggests that the issue of separation of powers should lead the Court to grant cert:
Separation of powers considerations strongly counsel in favor of this Court’s review. The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA. App. 127a. As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation. That is a role for which the Justice Department—not the House—is institutionally designed.The petitioners once again invoke Baker v. Nelson, the 1972 case in which the Supreme Court summarily dismissed "for want of a substantial federal question" a challenge alleging that the Equal Protection Clause requires same-sex marriage. They claim that case conflicts with the First Circuit's overturning of DOMA.
Only this Court can settle this matter definitively. Unless and until this Court decides thequestion, the executive branch will continue toattack DOMA in the courts, while continuing to enforce it, thus creating more potential litigation for the House to defend.
A response to the petition by the respondents (the plaintiffs at the First Circuit) is due within 30 days.
GLAD (the attorneys for the plaintiffs) has issued a press release:
Congressional Leadership Seeks Supreme Court Review of GLAD’s DOMA Case
Gill Case Could be Decided in 2012-2013 SCOTUS Term
Congressional leadership in the form of the Bipartisan Legal Advisory Group (BLAG) today filed a petition for certiorari in the case Gill v. Office of Personnel Management, a challenge to the federal Defense of Marriage Act (DOMA).
The petition is in response to a unanimous May 31st ruling by the U.S. Court of Appeals for the First Circuit that Section 3 of DOMA is unconstitutional with respect to claims brought by seven married same-sex couples and three widowers from Massachusetts. Gay & Lesbian Advocates & Defenders (GLAD) represents the plaintiffs.
Mary Bonauto, GLAD’s Civil Rights Project Director and lead attorney in the case, said, “We will look closely at the petition and will consider our options. We remain convinced that our clients deserve to be treated equally under the law and have their marriages respected by their government. Two federal courts have agreed with us so far.”
GLAD filed Gill v. Office of Personnel Management on March 3, 2009. Prior to the appellate court decision, U.S. District Court Judge Joseph L. Tauro found DOMA unconstitutional on July 8, 2010.
Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.