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Gay marriage cases: Now up to seven

A Boston-based gay rights advocacy firm on Wednesday filed its own case on same-sex marriage in the Supreme Court, the seventh such petition on the issue to reach the Justices during their summer recess.  At least some of the cases are likely to be considered by the Justices as early as their first formal Conference of the new Term, set for Monday, September 24.  The new petition and appendix were filed in Pedersen v. Office of Personnel Management (docket 12-231).

Gay & Lesbian Advocates & Defenders, representing six married same-sex couples and one gay widower from three New England states that allow gay marriages, asked the Court to take the case directly from a District Court in Connecticut, bypassing the Second Circuit Court.   That is one of six cases on the constitutionality of a key part of a 1996 federal law — the Defense of Marriage Act — that allows federal benefits for married couples to go only to those involving one man and one woman.  The seventh case tests California’s Proposition 8, a ban on gay marriage in that state.

So far, only one federal appeals court has ruled on the constitutionality of DOMA’s benefits ban, striking it down in May.   Three of the new petitions are asking the Court to review that decision by the First Circuit Court (dockets 12-13, 12-15, and 12-97).  The other three DOMA petitions are attempts to persuade the Court to rule now on District Court decisions that have also struck down that provision (dockets 12-16, 12-63, and 12-231).   In the “Proposition 8” case, the Ninth Circuit Court nullified that voter-approved ballot measure last February (docket 12-144).

The Court has complete discretion whether to accept for review any, or all, of the cases; none of them has definitely been scheduled yet for a Conference of the Justices.  The Court’s next opportunity to grant new cases for review will be on August 31, but most of the gay marriage cases will not be ready for consideration by then.   They are likely to be ready, however, for the September 24 Conference.  Any grants from that Conference may be announced as early as September 25.

What primarily distinguishes the DOMA petition from the one on “Proposition 8” is that the couples or individuals challenging DOMA are already married, so those cases do not raise the issue of whether there is a legal right to same-sex marriage.   The California case was won in the Ninth Circuit by two gay couples who want to be married, but are barred by state law.   The petition in that case is by proponents of the ballot measure that won approval in November 2008.  The DOMA petitions are by married couples, individuals, the Obama Administration, the Republican leaders of the House of Representatives, and the state of Massachusetts.

Even the “Proposition 8” case may not require the Justices to decide whether there is a right to gay marriage.  That’s because the Ninth Circuit chose to bypass that issue.  It ruled, however, that if a state has once granted homosexuals a right to marry, as California had under a state Supreme Court ruling, it is unconstitutional to take away that right when that is done out of hostility to homosexuality.

There are two core questions, however, that are common to all seven petitions.

One of those asks the Court to settle what constitutional test is to be used for judging laws that discriminate on the basis of sexual identity or orientation.  Although the Court has decided a number of gay rights cases in recent years, it has never resolved whether courts should apply the most lenient test — “rational basis,” or some variation of that — or some more rigorous test — that is, some form of “heightened scrutiny.”   In none of the cases is any party asking the Court to apply the toughest constitutional standard: “strict scrutiny.”   The lower courts have split on whether to apply a lenient or more demanding standard.

The second common issue in the cases is the impact, if any, on the new cases of a 1972 Supreme Court decision, Baker v. Nelson.  That was a summary ruling (no briefing and no formal argument) declaring that a challenge to a Minnesota law limiting marriage to a man and a woman did not raise a “substantial federal question.”   In the new cases now awaiting the Supreme Court’s attention, the supporters of same-sex marriage equality are arguing that the Baker precedent is not binding on the issue now, while opponents of gay marriage rights are arguing that Baker has settled the constitutionality of laws that confine marriage to its traditional form, involving only opposite-sex couples.

With seven new petitions now pending, it seems unlikely that the Court will grant review of all seven.   The issues are more or less parallel in the six DOMA petitions, with the “Proposition 8” case raising a considerably different set of actual or implied questions.  The federal government always stands quite a good chance of having its petitions granted, and the Justice Department lawyers have urged the Court to allow the House GOP leaders to come into the DOMA cases to defend that law’s constitutionality, since the Obama Administration is no longer doing so (although officials have said they will go on enforcing the DOMA ban as long as it is on the books).   How the Court will sort out review in cases raised by other parties is unclear, although it conceivably may want to hear a DOMA case involving people actually affected by it, or by a state actually affected by it — here, for example, Massachusetts.

In the new DOMA petition in the Pedersen case,  their lawyers urged the Court to grant review of their case, noting that it involves individuals who “have been disadvantaged by DOMA in a wide variety of different ways that demonstrate the breadth of DOMA’s impact on a range of important, larger federal programs (e.g., federal income tax, federal employee and retiree workplace benefits, and Social Security benefits”…), as well as two “important federal statutes” — the Employee Retirement Income Security Act and the Family and Medical Leave Act.   The petition added: “DOMA is not a narrow statute that discriminates against gay men and lesbians in discrete contexts, but rather a broad-based enactment whose effects pervade the entire U.S. Code.”   It has been estimated that more than 1,000 federal provisions are affected by the DOMA provision on marriage.

The Pedersen individuals, their petition said, “represent the range of DOMA’s effects on married gay men and lesbians.”






Recommended Citation: Lyle Denniston, Gay marriage cases: Now up to seven, SCOTUSblog (Aug. 22, 2012, 7:34 PM),