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Lawyers for the American Civil Liberties Union have brought the third case in recent weeks before the Supreme Court to deliberate the constitutionality of the Defense of Marriage Act (DOMA) in the next term. They are asking the Supreme Court to leap-frog the Second Circuit appeals court and rule directly on their case in Windsor v. USA. Trial court found for the plaintiff, declaring DOMA unconstitutional.

Edie Windsor Plaintiff in the ACLU's constitutional challenge of the Defense of Marriage Act in the second circuit.
Edie Windsor (Scott Wooledge)
Concerns about the health of 83-year-old plaintiff Edie Windsor were cited among the reasons for the haste. From the Huffington Post:
Roberta Kaplan, Windsor's lawyer, said that Monday's petition to speed the lawsuit's movement through the courts was due in part to her client's age and health. Windsor has a heart condition, and on June 13, after the Bipartisan Legal Advisory Group filed a notice of appeal, Windsor filed a motion to expedite the latest appeal, citing her poor health and a desire to "see the constitutional claim of her spouse's estate resolved during her lifetime."

In the petition to the court, the lawyers argued that the case is a straightforward example of how DOMA financially impacts married same-sex couples.

Scottie Thomaston at Prop 8 Trial Tracker has posted a pdf of the motion.

Previously, the Department of Justice had requested that the Ninth Circuit case Golinski v. OPM also skip the appeals court review and be heard directly at the SCOTUS. The DOJ cited a handful of cases where the Supreme Court had opted to skip appeals. Trial court found for the plaintiff Karen Golinski, also declaring DOMA unconstitutional.

The move by the Justice Department, however, begged the question of why the DOJ did not do the same with Windsor? Chris Geidner at BuzzFeed sheds some light on that, indicating there is a difference in legal strategy, relevant to levels of judicial scrutiny the cases were decided on. Geidner describes the ACLU as "parting ways" with the DOJ on legal strategy.

Another case brought by the Gay And Lesbian Advocates and Defenders and the office of the Massachusettes attorney general, Gill v. OPM/Massachusetts v. HHS is also under consideration for a hearing at the Supreme Court. Gill resulted in both trial and First Circuit appeal court decisions that DOMA was unconstitutional.

Prop 8 could potentially be heard at the Supreme Court next year as well. Prop 8 proponents announced their clear intention to appeal their loss to the SCOTUS, and had 90 days to do so. They have yet to file, 45 days later.

Though Prop 8 does concern the topic of marriage equality, there is not much legal overlap with the DOMA cases, which are more largely concerned with issues of federalism and judicial scrutiny of discriminatory laws, than a fundamental constitutional right to marry.

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Comment Preferences

  •  So: Windsor, Golinski, and Gill, respectively (5+ / 0-)

    All DOMA challenges that might or might not be heard by the Supreme Court in the next year.  

    What are the predictions of court-watchers, as far as the request to skip appeals and/or to combine cases?

    Or, if left separate, what are the rival merits of each case as compared to the others?  For those us watching DOMA challenges with bated breath, which one should we HOPE hits SCOTUS first?  

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Mon Jul 16, 2012 at 10:31:51 AM PDT

    •  It's so rarely requested... (6+ / 0-)
      Recommended by:
      lgmcp, craigkg, davehouck, sfbob, davelf2, HeyMikey

      I'm not sure we have much data to support what the likely odds of the SCOTUS saying yes are. They have done it in the past. Will they think this issue has that much urgency?

      It's hard to see on what basis SCOTUS CAN pass on Gill. DOMA fell in trial and appeal. It will be unenforceable in the First circuit if they don't hear the case, causing a circuit split on a Federal law. Letting that go unaddressed would be a very weird choice for them to make. I mean, it's why the Supreme Court exists, to settle circuit splits.

      In terms of individual cases, The differences mostly involve whether DOMA fails under rational, heightened or strict scrutiny and which standard should be applied to such a law.

      I think there are aspects of the Golinski case that the DOJ apparently feels make it the most ideal vehicle, which explains their enthusiasm for that case. And they'd like the Supreme Court to declare laws that target LGBT people deserve heightened or strict judicial scrutiny. This would be a big win.

      So, my hope is they do allow Golinski to be folded into Gill. Which the Nine may agree is smart. It allows two circuit opinions and judicial economy of addressing one law, via multiple cases.

      Not sure about how Windsor would fit in. Or what ACLU is trying to do here.

      "When I think of all the harm the Bible has done, I despair of ever writing anything to equal it." ~ Oscar Wilde

      by Scott Wooledge on Mon Jul 16, 2012 at 10:56:26 AM PDT

      [ Parent ]

  •  This means the court will have to say SOMETHING (4+ / 0-)
    Recommended by:
    lgmcp, Scott Wooledge, craigkg, sfbob

    Even if it smacks down the request to combine the cases. It really can't say they're that different from each other, though, since each challenges section 3 of DOMA.

    I wonder if this increases the probability that they'll deny cert on Perry v Brown? Because if they do, marriages start in California very soon after.

    -7.75, -8.10; All it takes is security in your own civil rights to make you complacent.

    by Dave in Northridge on Mon Jul 16, 2012 at 10:48:34 AM PDT

    •  I could see where a realpolitik (4+ / 0-)
      Recommended by:
      Dave in Northridge, lgmcp, craigkg, sfbob

      math could lead them to decide to pass on Perry and just address DOMA. Just with an eye to using the court's time most judicially.

      "When I think of all the harm the Bible has done, I despair of ever writing anything to equal it." ~ Oscar Wilde

      by Scott Wooledge on Mon Jul 16, 2012 at 10:58:16 AM PDT

      [ Parent ]

      •  Given the narrowing of the holding in Perry (3+ / 0-)
        Recommended by:
        lgmcp, sfbob, Scott Wooledge

        I think it is more likely than not that they will decline to hear Perry v Brown (nee Perry v Schwarzenegger). The case now rests on the constitutionality of a very limited holding that is presently unique to California and is likely to remain unique to California given the inability of marriage equality opponents to roll-back marriage equality in the other states where it has gone into affect. They are also likely to view the case as too much of a foreshadowing on how they might rule in a future boarder marriage equality case despite the fact that legally the Perry case would not rest upon a Due Process Clause of the 14th Amendment, fundamental right to marriage argument. My guess is they will deny review for Perry, let the narrow 9th Circuit ruling stand letting marriages resume in California and thereby defer a broader marriage equality ruling for a future date. I'm fairly certain that would be Kennedy's line of thinking as he tends towards being an incrementalist and minimalist, but the question is are their four votes between the conservative and slightly-left-of-center wings of the Court to accept the case.

        "Lesbian and gay people are a permanent part of the American workforce, who currently have no protection from the arbitrary abuse of their rights on the job." --Coretta Scott King

        by craigkg on Mon Jul 16, 2012 at 12:28:54 PM PDT

        [ Parent ]

  •  super exciting. (2+ / 0-)
    Recommended by:
    craigkg, Scott Wooledge

    i'm glad to see progress. very glad.

    pseudoscience can kill

    by terrypinder on Mon Jul 16, 2012 at 12:54:52 PM PDT

  •  Go Edie! (3+ / 0-)
    Recommended by:
    craigkg, HeyMikey, Scott Wooledge

    Can't wait for the day she see's a rightful and just outcome on her case. Sending her good health wishes!!!

    May 9, 2012 - Evolution Day

    by cooper888 on Mon Jul 16, 2012 at 12:59:24 PM PDT

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