The Obama Administration notified the Supreme Court Friday afternoon that it will shortly file two more requests — in cases from New England and New York — for the Justices to rule on the constitutionality of the federal Defense of Marriage Act (DOMA).   In a new brief responding to an already pending case, Solicitor General Donald B. Verrilli, Jr., said the additional petitions will give the Court a wider array of offerings to confront the rights of same-sex marriage couples under federal law.  There are already seven gay marriage cases pending at the Court — six of them involving DOMA; the seventh involves California’s “Proposition 8.”

Lawyers for thirteen individuals in three New England states and for a New York widow have already asked the Court to review rulings by U.S. District Court judges against DOMA’s constitutionality, and to do so before those cases could be reviewed by federal Circuit Courts.  Those are the two cases in which the Solicitor General said the U.S., too, will be asking that the Circuit Courts be bypassed so that the Justices deal with District Court decisions.  (The New England case is Pedersen v. Office of Personnel Management, docket 12-231, and the New York case is Windsor v. United States, 12-63).

The Court so far has not scheduled any of the marriage cases for Conferences of the Justices.   The petitions are on different schedules, so it is unclear whether the Court will examine them as a group after all the filings are in, or select some for action and leave the others to await the outcome.  Because federal courts have struck down DOMA’s Section 3 in all of the now-pending cases, it seems highly likely that the Court will take on that issue rather than opting to deny review across the board.    The earliest that the Justices might examine the cases is at a private Conference scheduled for September 24; some of the cases, though, will not be ready by then, it appears.

Under Section 3, some 1,000 provisions of federal law — many of them involving benefits that are provided to married couples — are reserved only for marriages of one man and one woman.   That exclusion is what has led the lower courts, in the most recent round of decisions, to find Section 3 unconstitutional.   The Obama Administration at one time defended that provision, but last year switched positions, and now argues that Congress acted unconstitutionally in passing the ban in 1996.   In the Justice Department’s place as a defender of the law is the Republican leadership of the House of Representatives, which has its own petition pending (docket 12-13), in a First Circuit Court case originating in Massachusetts.   The government has its own petition in that case (12-15), as does the state of Massachusetts (12-97).

In Friday’s filing in the Windsor case, Solicitor General Verrilli made two suggestions regarding the case: either hold it for action on other pending cases, primarily because it has some procedural complexities in it, or else grant review of it along with some others if the Court concludes that it would raise the constitutional issue in an proper way.   The Court has complete discretion what to do with that case, as with all of the others.

In the DOMA cases, Verrilli noted, the Court will be confronted not only with the basic issue of DOMA Section 3’s validity, but also the underlying issue of what constitutional standard the Court should adopt for use in judging laws that treat people less favorably based upon their sexual identities.   The Court has never spelled out a specific standard of review, even while deciding several gay rights cases in recent years.

The one case now pending at the Court in which the federal government has not yet taken any part is the petition involving “Proposition 8,” the voter-approved ballot measure in California that imposed a flat ban on any same-sex marriages in that state.   That case could lead the Court into an examination of whether same-sex couples have any right, under the Constitution, to marriage equality.  The Ninth Circuit Court, however, decided that case on a narrow basis, without reaching any right-to-marry question.   The petition in that case was filed by the sponsors of “Proposition 8,” who are defending it in the place of California state officials, who refused to do so.

The DOMA cases do not raise any issue about a right to marry, since the couples and individuals involved in those cases are now or were in marriages that were legal under their own state’s laws.

 

 

 

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. to file new DOMA pleas, SCOTUSblog (Aug. 31, 2012, 5:45 PM), http://www.scotusblog.com/2012/08/u-s-to-file-new-doma-pleas/