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