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New filings due on DOMA (UPDATED)

UPDATED to include another petition seeking review on DOMA.


The Obama Administration and the Republican leaders of the House of Representatives will shortly file new documents to help the Supreme Court sort out the increasingly tangled constitutional controversy over same-sex marriage.   The Justices now have eight separate petitions awaiting them, all filed before the Second Circuit Court last Thursday issued a sweeping new decision striking down the 1996 federal law, the Defense of Marriage Act.

Depending upon what the new filings are, they could slow down the Justices’ consideration of the cases.  If, for example, completely new petitions were filed in reaction to the Second Circuit ruling, it could take weeks for that case to be ready.  Although there have been indications that the Justices want to consider the gay marriage cases all at once, and were likely to do so sometime next month, maneuvering over the Second Circuit case might lead to some delay.    The issue, though, is still expected to be taken up by the Court during the current Term and, if one or more cases get accepted, a final decision could come by next summer.

The House GOP leaders have told the Court that they should accept just one petition for review — the leaders’ own challenge to a First Circuit decision that also struck down DOMA’s Section 3, which provides that marriage under any federal law or regulation is to be understood as between a man and a woman only.  That definition would bar any federal benefits to a same-sex couple even though they were legally married under state law.  The House GOP has taken up the defense of DOMA since the Obama Administration decided last year to abandon that defense.  All of the other petitions, the Republican leaders have said, have some procedural flaws or are not appropriate cases for review.   That includes the four separate petitions that the Administration has filed.

The Administration, by contrast, has given the Court a variety of suggestions, recommending various combinations of cases that the Court might wish to take up.   That includes the government’s four petitions, plus others’ petitions.

Several filings in the pending cases were due last Friday, including three by attorneys for the House GOP leaders, and one by the Administration’s Solicitor General.   In one of the GOP documents, Washington attorney Paul D. Clement noted that the Second Circuit had just decided its case the day before.   “The House [GOP} intends to address the Second Circuit’s decision and its ramifications…in a forthcoming supplemental filing in this Court,” that brief said.   It did not elaborate.  That GOP filing came in reaction to one of the government’s petitions, United States v. Windsor (docket 12-307).   That is the same case that led to the Second Circuit ruling last week, but the government had sought review of a district court ruling against DOMA without waiting for the Second Circuit to act.

In a filing Friday by Solicitor General Donald B. Verrilli, Jr., for the Administration, the Court was told: “The government plans to take further steps to seek this Court’s review in Windsor in light of” the Thursday decision.  It did not say exactly what those steps would be.

Presumably, the Court has the option of taking up the Windsor case, even though it has just emerged, without waiting for full-scale petitions and opposing briefs to come in.

In some ways, the Windsor case might seem like the best one for the Court to review, if it took only one case.  That case comes from a federal appeals court, after full review at that level, and it appears to be one in which Justice Elena Kagan could take part.  The First Circuit Court case that the House GOP leaders have appealed also reached the Court after full review at the appellate level, but it is widely assumed, based on her past practice, that Justice Kagan would have to disqualify herself from that case because she may have had something to do with it in her former role as U.S. Solicitor General.  If she is out of a case, there is always the risk that the other Justices would split four to four, which would not result in a definitive ruling on the constitutionality of DOMA.

The Windsor case also resulted in a decision that gave gays and lesbians broader protection under the Constitution than they have ever received from any federal appeals court.  In fact, the dissenting judge in that case in the Second Circuit argued that the legal standard the majority applied there — technically, “heightened scrutiny” — is so restrictive that it would mean the end of laws or state constitutional amendments passed in thirty-nine states that ban same-sex marriage within those states.

But the House Republican chiefs have argued that Windsor is not an appropriate case for the Court, because there are doubts about whether the case even involves a legally recognized marriage, since the woman involved, Edith Windsor, was married to her same-sex spouse in Canada before her home state of New York legally recognized marriage of same-sex couples.    Moreover, the House GOP has contended that, since Edith Windsor won her challenge to DOMA in lower courts, she is not a proper person to be appealing to the Supreme Court, anyway.  That is the same argument the GOP leaders are making to all of the other petitions, because each of those was filed by a party who had won in a lower court, and why those lawmakers are  trying to keep the Court focused on the Republicans’ own petition.

Here are the eight petitions the Court now has before it in DOMA cases, in advance of any potential filings in reaction to the Second Circuit case:

Government petitions: from the First Circuit, docket 12-15; from a federal district court in California (12-16), from a federal district court in Connecticut (12-302), and from a federal district court in New York — the Windsor case (12-307).

House GOP leaders’ petition: from the First Circuit (12-13).

By the state of Massachusetts: from the First Circuit (12-97).

By Edith Windsor: From a federal district court in New York (12-63).

By same-sex couples in New England: from a federal district court in Connecticut (12-231).

All of the DOMA petitions raise the basic constitutional question of the legal standard the Court would use to judge laws that are claimed to discriminate on the basis of sexual identity, and the separate question of the power of Congress to write a law that establishes a uniform national definition of marriage.   Those do not involve the basic question of whether the Constitution guarantees a right of same-sex couples to marry.

In addition to the DOMA cases, the Court now has before it a petition (Hollingsworth v. Perry, docket 12-144) on the constitutionality of California’s voter-approved “Proposition 8.”  That ballot measure amended the state constitution to ban same-sex marriage in that state, but the measure has been struck down in a narrow opinion by the Ninth Circuit Court.   The Ninth Circuit majority said that it did not need to decide whether gays and lesbians have a right to get married, since “Proposition 8” was invalid because it took away a marriage right that California had previously recognized, and did so partly out of hostility to homosexuality.






Recommended Citation: Lyle Denniston, New filings due on DOMA (UPDATED), SCOTUSblog (Oct. 23, 2012, 7:51 PM),