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Setback for U.S. on DOMA

The Obama Administration’s plea to speed up an appeals court’s review of the constitutionality of the federal Defense of Marriage Act’s ban on federal benefits for same-sex married couples has met a temporary setback.  In an order issued last week (found here), the Ninth Circuit Court denied the Administration’s plea to send the case to an 11-judge en banc court, bypassing a three-judge panel.  That means the case will stay with the three-judge panel, which is probably bound by a Circuit precedent that will work against the government’s challenge to the ban..

Two months ago, the government filed its plea for initial en banc review of the case of Golinski v. Office of Personnel Management (Circuit dockets 12-15388 and 12-15409).   At least part of the strategy was to put the case before a court that would not have to follow the 1990 Circuit Court ruling in the case of High Tech Gays v. Defense Industry.   That decision established that laws treating gays and lesbians differently will be upheld if they merely satisfy “rational basis” review — the easiest-to-meet constitutional standard.

Such precedents are usually binding on later three-judge panels, but an en banc court would be free to move away from the precedent  The Administration is now pressing an argument that DOMA’s denial of federal benefits for gay couples legally married in a state is unconstitutional, on the theory that it cannot withstand a challenge based on a more rigorous constitutional test: “heightened scrutiny.”

The Administration so far has succeeded on only one aspect of its case in the Ninth Circuit: the case has been put on an expedited schedule, and last week’s order denying en banc review said that the existing scheduling order will continue to be followed.  Briefs are to be completed by July 31, and the case will be heard by a three-judge panel in San Francisco during the week of September 10-14.

That puts the case on what may well be a slower judicial track than another major case testing the constitutionality of the DOMA ban.   The First Circuit Court held a hearing April 4, in that case, Gill v. Office of Personnel Management (Circuit docket 10-2207), and a panel ruling could come at any time.  Thus, that case may move to the Supreme Court more quickly than the Ninth Circuit case.

Within the Ninth Circuit, there has been some disagreement among District Court judges — in cases testing DOMA — over the proper standard of constitutional review.   In the Golinski case, a District judge in San Francisco ruled that more recent Supreme Court rulings on gay rights had undermined the rational basis standard.  That judge struck down the DOMA ban on that basis.

However, in a ruling last week by another District judge in San Francisco, that second judge said that the rational basis standard is the one that controls judges in the Circuit.  Even so, that judge also found that DOMA’s benefits ban for same-sex couples was unconstitutional, even using rational basis review.  That decision came May 24 in the case of Dragovich v. U.S. Treasury Department, District docket 10-1564).  That decision can be read here.   (The challengers to DOMA in the First Circuit’s Gill case notified the panel there of the Dragovich decision, arguing that it bolstered their case.)

Meanwhile, the Ninth Circuit Court has been pondering whether to put before an en banc court the celebrated “Proposition 8” case.  A panel of the Ninth Circuit struck down that California voter-approved measure banning same-sex marriages in California.  While that case had started out in federal District Court in San Francisco as a sweeping constitutional challenge to the gay marriage ban, the Ninth Circuit panel ruling against it was far narrower.

The Proposition 8 case (Perry v. Brown, Circuit docket 10-16696) is likely headed to the Supreme Court, and, if en banc review is denied in the Circuit Court, could reach the Justices as early as this summer.   No action on it would be likely before the new Term, starting October 1.

(The longer the time lapse since en banc review was sought in that case, the more likely it seems that such reconsideration will be denied, with some judges on the full bench writing dissents from such a denial.)


Recommended Citation: Lyle Denniston, Setback for U.S. on DOMA, SCOTUSblog (May. 28, 2012, 8:50 PM),