Raising new uncertainty about how fast one of the major test cases on same-sex marriage will move, the Ninth Circuit Court on Wednesday delayed for the time being any action on the Obama Administration’s plea for an immediate referral of that case to a full 11-judge bench of that appeals court.  Instead, the matter will stay at least temporarily with a three-judge panel, on a schedule that would run on into September.  The new Ninth Circuit scheduling order is here.  However, whether that schedule would actually be followed remains unclear at this point.

These developments and the related uncertainty they created could mean that a case heard a week ago by the First Circuit Court in Boston could be the first one to reach the Supreme Court on the constitutionality of a 1996 federal law, the Defense of Marriage Act.   A key section of that law permits any kind of federal benefit based on marriage only for opposite sex couples, thus denying any benefits even for gay couples who are legally married under a state law.  That section is at issue in both the First and Ninth Circuits, and, in fact, is being contested in a total of ten cases around the country.

This blog discussed last month (in this post) the Obama Administration request for immediate en banc review of two appeals pending in the Ninth Circuit — one by the Administration, the other by Republican leaders of the House.  The Administration appeal contends that DOMA’s denial of benefits to married gays is unconstitutional, while the House GOP leaders’ appeal defends its constitutionality.  The GOP leaders have taken up the defense of DOMA after the Administration switched positions on its validity last year, and those leaders have bitterly criticized the government’s switch in court filings, accusing it of shirking a constitutional duty.

A federal judge in San Francisco ruled that the DOMA ban is unconstitutional, in a case involving a federal court employee who is legally married under California law and sought to include her spouse in her family insurance coverage.  The House GOP leaders are contesting that ruling in their appeal, while the government is supporting it and siding with that court staff member — Karen Golinski.

If the two pending appeals (both titled Golinski v U.S. Office of Personnel Management, dockets 12-15388 and 12-15409) go before a three-judge Ninth Circuit panel, it probably will be bound by an earlier Circuit precedent holding that differing treatment of gays and lesbians may be upheld if it satisfies only “rational basis” review, the easiest-to-meet constitutional standard.  If, however, the Circuit Court were to take the case en banc, it would be free to abandon that precedent and impose a tougher test for laws that are claimed to discriminate based on sexual identity.

While the House GOP leaders told the Ninth Circuit last week that they would prefer to have the case go first to a three-judge panel, they did not flatly oppose en banc review, if the Circuit Court is inclined to take that step.  Doing that, the leaders said, would speed up the case.  (The House GOP filing last Thursday can be read here.)

The Circuit Court’s new scheduling order left the en banc issue unresolved for the time being.  In the meantime, it laid out a briefing schedule before the three-judge panel that would have the final brief filed on July 31.  If the case stays with the three-judge panel, the order said, it would be set for a hearing during the week of September 10-14 in San Francisco.

At the same time, though, the new order told the House GOP leaders to file by May 2 any response to the Administration’s request for initial referral of the dispute to the en banc court, which would be made up of 11 judges.   The GOP response and the government petition would then go before the full Ninth Circuit for a decision for or against review by an 11-judge court.   If en banc review is then granted, the order said, then a new round of briefing would be announced for that review.   If en banc is not granted, then the three-judge panel would go ahead on the schedule laid out Wednesday.  Although that schedule runs into the fall, the order indicated that this was an expedited schedule.

The House GOP leaders have already telegraphed what they are likely to say next month when they reply to the Administration plea for en banc review.  In their court filing last week, the leaders said they would contend that a three-judge panel was fully capable of deciding the constitutional issue, and that the full court should grant initial en banc review only where there is an internal conflict of views within the Circuit on an issue, which, it noted, there is not in this instance.  But it added that, if en banc review “is inevitable, there is no reason for delay.”

In addition, the House Republican chiefs have telegraphed what they will argue in the brief that is due before the three-judge panel on June 4.  They said that they would argue that the San Francisco judge who ruled for Karen Golinski had been wrong in failing to follow Circuit precedent that the DOMA ban should be judged only by a rational basis standard, and would contend that the DOMA ban is valid under rational basis review.  (The Ninth Circuit precedent at issue was issued in 1990 in the case of High Tech Gays v. Defense Industrial Security Clearance Office.)

In striking down the DOMA section, San Francisco federal judge Jeffrey W. White ruled that more recent Supreme Court decisions have undermined the use of the rational basis standard in gay rights cases.

Besides arguing that Judge White was wrong about that, the House GOP filing amounted to a stern rebuke of the Obama Administration for abandoning its defense of DOMA’s ban.  The filing said that switch was made “in the most extraordinary, indefensible, and constitutionally suspect fashion.” The government, it added, was now going beyond a simple refusal to defend DOMA, and was actually attacking its constitutionality directly, simply because it “does not like” that ban.



Posted in Everything Else

Recommended Citation: Lyle Denniston, One gay marriage case slowing, SCOTUSblog (Apr. 11, 2012, 7:23 PM), http://www.scotusblog.com/2012/04/one-gay-marriage-case-slowing/