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Gay marriage issue reaches Court (UPDATED)

UPDATED Tuesday 7/3 at 3:55 p.m.    For those who wish to start following this case, it has now been docketed as 12-13.   The Court switched to new OT 12 numbers on the docket last week.


Placing before the Supreme Court another huge cultural controversy, the House of Representatives’ Republican leaders on Friday afternoon asked the Justices to uphold the constitutionality of the 1996 federal law that limits all federal programs and benefits for marriage to legal unions of a man and a woman.   This could set the stage for the Justices to take up the issue of same-sex marriage in their next Term, opening October 1.   The new petition is here; the case does not yet have a docket number assigned.

“This case calls out for the Court’s review,” the petition argued.  The First Circuit Court, it added, applied “an entirely novel form of scrutiny that cannot be reconciled with the approach of this Court and that of ten other circuits.  Thus, the decision below invalidates an act of Congress, conflicts with the decisions of this Court and numerous other courts of appeals, and embraces an entirely novel approach to constitutional equal protection analysis.  It is hard to imagine a stronger candidate for this Court’s review.”

This is the first same-sex marriage case to reach the Court in a new round of lawsuits from coast to coast, with many of the cases focused on the law at issue in the new House GOP petition: the Defense of Marriage Act, passed with overwhelming majorities in the House and Senate and signed into law by President Clinton in 1996.   Soon to be filed at the Court is a case from California, testing the constitutionality of “Proposition 8,” the voter-approved ban on marriage for gays and lesbians in that state.

“Proposition 8” has been struck down by a federal appeals court, as has DOMA in the case newly filed at the Supreme Court.  The California measure is a flat ban on same-sex marriage, but it is restricted to one state.   DOMA applies nationwide, and its section at issue in the new appeal does not seek to ban such marriages, but, when they are allowed under a state’s own laws, denies all federal benefits to such couples.

The GOP leaders of the House have taken up the defense of DOMA, in the wake of a decision last year by the Obama Administration to stop defending its constitutionality in court.   The Democratic leaders of the House have not joined in the defense of the Act, but courts have allowed the GOP leaders to take on the task and the Administration has encouraged them to get involved.   While not defending the law any more, the Administration insists that, since it is still on the books, it will enforce it while the court tests go on.

The new petition sharply criticized the Administration for its actions on DOMA.   The GOP leaders, in fact, used that stance as a further argument why the Supreme Court should accept this case for review.

They argued: “Separation of powers considerations strongly counsel in favor of this Court’s review.  The executive branch has not only abdicated its traditional role of defending the constitutionality of duly-enacted statutes, but has simultaneously announced that it will continue to enforce DOMA.  As a result, the House has been forced into the position of defending numerous lawsuits challenging DOMA across the Nation.  That is a role for which the Justice Department — not the House — is institutionally designed.  Only this Court can settle this matter definitively.”

In the meantime, it said, the Administration will continue to attack DOMA in court, while also enforcing it, “thus creating more potential litigation for the House to defend.”

The First Circuit on May 31 struck down DOMA’s Section 3, defining marriage for purposes of all federal laws and programs as “only a legal union between one man and one woman as husband and wife.”   (Another part of DOMA, not at issue in this case, seeks to assure states that do not recognize same-sex marriages that they will not have to recognize such legal unions performed in other states.)

In the House GOP petition, the First Circuit was attacked as having “invented a new standard of equal protection review that it described as involving ‘intensified scrutiny’ and ‘closer than usual review.’…The court said that, under this newly minted form of judicial review, the ‘deference ordinarily accorded’ to an Act of Congress is ‘diminished.’ ”

This new standard, the leaders went on, was presented by the Circuit Court “as a fusion of federalism and equal protection concerns.”  The standard it used, the petition added, “was outcome-determinative in this case, since the court acknowledged that DOMA satisfies rational basis review” (the lowest test of constitutionality of a law).

The House GOP could have waited as much as three months before pressing its appeal to the Supreme Court.  By filing its challenge there in just a single month, it apparently sought to add urgency to the case.  Under normal procedures, the Court would not even consider whether to grant or deny the review until it holds its first Conference of the new Term in the week of September 24, ahead of the official opening of the new Term.

The DOMA provision at issue in the case is also under review now in the Ninth Circuit Court.  Two federal District judges in California have ruled against it, and those cases are now on appeal.

The Ninth Circuit is the appeals court that has struck down California’s “Proposition 8,” but it did on quite narrow grounds, largely limited to California.  That has raised the question whether the dispute in that case is broad enough to assure review by the Supreme Court.   The case was considerably broader when it was first filed by prominent attorneys Theodore B. Olson and David Boies, and when it was ruled upon by a federal District judge in California, who found it unconstitutional in a broad ruling.

Proponents of the California ban have been expected to file a petition in the Supreme Court early this summer.

The House GOP petition was filed at the Court Friday by Paul D. Clement, the prominent Washington, D.C., lawyer and former U.S. Solicitor General, who was a key lawyer in the Court’s major cases this Term on the new federal health care law and Arizona’s tough new immigration law.   Clement represented the 26 states challenging the health care law, and the state of Arizona in its defense of its immigrant-control law.  The Court did not strike down any of the new Affordable Care Act, but did strike down three of the four provisions of the Arizona immigration law at stake.



Recommended Citation: Lyle Denniston, Gay marriage issue reaches Court (UPDATED), SCOTUSblog (Jun. 29, 2012, 6:01 PM),