The House GOP leaders have told a federal court in Connecticut that they plan to go to the Supreme Court by the end of this month with a plea to rule on the constitutionality of the 1996 federal law that bans federal marriage benefits for same-sex couples who are legally married — a ban that those lawmakers support.  They asked a federal District Court judge in New Haven to put on hold a similar case testing the same provision in the Defense of Marriage Act.  A legal memo to support the plea is here.

This move indicates that the same-sex marriage controversy may reach the Court first in a test of DOMA, which some gay rights advocates believe is a strong candidate in their nationwide campaign to gain marriage equality for gays and lesbians.  A separate constitutional test, of California’s Proposition 8 ban on gay marriages in that state, is also expected to reach the Supreme Court in coming weeks.  One or both of those cases could set the stage for the Court to take on that issue at its next Term, starting October 1.

Under DOMA’s Section 3, any provision in a federal law that mentions marriage, including any benefits or legal advantages, is reserved solely for a marriage of a man and a woman.  That provision has been under constitutional challenge in a series of cases, literally from coast to coast.  It has been struck down recently by several District Court judges, and by the First Circuit Court.   It is the First Circuit’s ruling that the Bipartisan Legal Advisory Group of the House of Representatives plans to challenge in its imminent petition to the Supreme Court.

While the Bipartisan Legal Advisory Group is composed of House leaders of both political parties, the Democratic leaders are not joining in the legal defense of DOMA — a cause that the GOP leaders took up after the Obama Administration last year decided it would no longer provide such a defense in court, having changed its mind and concluded that the marriage restriction is unconstitutional.

On May 31, the First Circuit struck down the federal restriction (that decision is discussed in this post).   In the filing Wednesday in District Court in New Haven, the GOP leaders said their lawyers are now preparing a petition for certiorari in the First Circuit case, “a petition which [the House GOP] intends to file by the end of this month.”   The memo argued that this case (Massachusetts v. U.S. Department of Health & Human Services) “is a good candidate for Supreme Court review.”

The Massachusetts case, of course, is a First Circuit case, but the House leaders filed their motion to stay a pending case in Connecticut, which is in the Second Circuit.  Even so, their stay motion argued that there is a case on DOMA’s validity now pending in the Second Circuit Court and the outcome of that will have a direct impact on the case now in District Court in New Haven.  So, the motion asked the judge in New Haven to stop all proceedings in that case until the Second Circuit rules on the issue.  (The Second Circuit case is Windsor v. New York, in which a federal judge in New York in June struck down the DOMA provision; that case may soon be put on an expedited schedule.)

The Connecticut case involves same-sex couples (or surviving spouses) who were legally married in Connecticut, New Hampshire and Vermont, and are contending that DOMA’s restriction violates their rights to equal protection under the Constitution.   (The case is Pedersen, et al., v. Office of Personnel Management, District Court docket 10-1750).   Lawyers for the couples in that case have said they will oppose the House GOP request for a stay, arguing that the case should go forward as early as possible because of the effect of the denial of marriage benefits to those couples.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, DOMA appeal due this month, SCOTUSblog (Jun. 21, 2012, 4:43 PM),