Fast-track plea on gay marriage

Seeking a fast track for two test cases on the constitutionality of the federal lawbarring benefits for legally marriedsame-sex couples, the Obama Administration this week asked the Ninth Circuit Court to go directly into review before a full 11-judge bench instead of a three-judge panel. Besides seeking such en banc review, the governmenturged the Court to put the issue on an expedited schedule with two pending cases joined. The government’s filing Monday on theappeals, both titled Golinski v. Office of Personnel Management (Circuit dockets 12-15388 and 12-15409), ishere. At issue is the Defense of Marriage Act.

DOMA isa 1996 law that includes a section declaring that same-sex couples, even if married legally in a state allowing such unions, are ineligible for any benefits, rights or other protectionsprovided to married couples under any federal law. The government has estimated that there are 1,138 laws that are covered by DOMA’s Section 3. That provision states that anywhere the word “marriage” appears in a federal law, it means only “a legal union between one man and one woman.”

The constitutionality of DOMA is already under review at the appeals levelin the First Circuit Court in Boston, before a three-judge panel. A hearing there is set for April 4 in the case of Gill v. Massachusetts (the lead case is 10-2207). A federal District judge in Boston in the Gill case and a federal District judge in San Francisco in the Golinski case have struck down Section 3, finding it discriminates unconstitutionally against legally married gay couples.

The Obama Administration last year gave up its defense in court ofDOMA’s ban, arguing that it cannot pass amore rigoroustest of constitutionality. It has continued to enforce the provision while the court cases proceed, however. In the meantime, the legal defense of DOMA has been taken over by lawyers representing the Republican leadership of the House of Representatives. That GOP group filed one of the appeals in the Ninth Circuit, and is involved in the First Circuit case, as well as in others around the country. The government filed the other appeal, for technical procedural reasons to assure that there would be a genuine case.

Ordinarily, the appeals to the Ninth Circuit would be heard and decided bya three-judge panel. But there is a dispute about whether that panel would judge DOMA under a more tolerant constitutional standard (“rational basis”) than the tougher one (“heightened scrutiny”) that the Obama Administration now believes should be the standard in cases involving laws that treat gays and lesbians less favorablybased upon their sexual identities. There is a Ninth Circuit precedent, the 1990 ruling in High Tech Gays v. Defense Industry, that said the standard was only rational basis.

That precedent may be binding on a three-judge panel, but it would not have to be followed byan 11-judge en banc Circuit Court. A full bench has the authority to reconsider such precedents, and that is exactly what the Obama Administration is now seeking. The standard, the new government filing said, is a “threshold question” that should be settled by the full Ninth Circuit before the two appeals go forward.

The Golinski case involves a federal court employee who was denied the opportunity to include her spouse on her federal family health insurance. When her DOMA challenge was before U.S. District Judge Jeffrey S. White, the San Francisco jurist found that morerecent Supreme Court rulings have undermined the use of the rational basis test in such cases. The judge applied heightened scrutiny, and ordered the government to provide Karen Golinski with family insurance coverage. She and her spouse were married in California during a brief interval when that was legal in the state. (California’s current ban on gay marriage — “Proposition 8” — has been struck down by a three-judge Ninth Circuit panel, but that caseis idle in that court while awaiting a decision on whether it will be reconsideredbefore a full bench.)

Ultimately, either the Proposition 8 case or one of the DOMA challenge cases is expected to reach the Supreme Court, for a major test on the constitutionality of laws against same-sex marriage. Neither is likely to reach the Court for final action during the current Court Term, however.

In urging the full bench to move promptly into the review of the Golinski case, the Administration contended that DOMA’s Section 3 fails the more stringent constitutional standard, because “it is not substantially related to an important government interest, and the legislative history of the statute demonstrates that the provision was motivated in part by animus towards gay and lesbian people.”

The validity of Section 3, the filing argued, should be decided by a full Circuit bench because it “is a matter of exceptional importance.” It noted that the Supreme Court has yet to provide a definitive ruling on what standard to apply to discriminatory laws based on sexual identity.

The document said that Ms. Golinski has no objection to the request for expedited and en banc review, but that the GOP House leadership would be filing a response to provide its own views on those requests.