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Solicitor General Donald Verrilli Jr.
In something of a surprise, the Department of Justice has petitioned the Supreme Court of the United States to hear two cases challenging the constitutionality of the Defense of Marriage Act (DOMA). The move by the Justice Department may help assure that a decision on DOMA will be reached within a year.
On July 3, 2012, the DOJ filed a petition asking that the Supreme Court review two cases that challenge the federal definition of marriage contained in Section 3 of the Defense of Marriage Act.
One of the cases is Massachusetts v. Department of Health and Human Services. In that case, on May 31, 2012, a three-judge panel of the United States Court of Appeals for the First Circuit unanimously found Section 3 of DOMA unconstitutional. On June 29, the House Bipartisan Legal Advisory Group, which is defending the constitutionality of DOMA, sought review of this case. It is likely that if the Supreme Court accepts this case, it will also accept its companion case, Gill v. Office of Personnel Management.
More surprisingly, the DOJ also asked that the Supreme Court review Golinski v. Office of Personnel Management. On February 22, 2012, Judge Jeffrey S. White of the U.S. District Court for the Northern District of California declared Section 3 of DOMA unconstitutional, writing "that neither Congress' claimed legislative justifications nor any of the proposed reasons proffered by [the Bipartisan Legal Advisory Group of the United States House of Representatives] constitute bases rationally related to any of the alleged governmental interests. Further, after concluding that neither the law nor the record can sustain any of the interests suggested, the Court, having tried on its own, cannot conceive of any additional interests that DOMA might further."
What is surprising about DOJ asking for a review of this case is that it has not yet been decided by an appeals court. A panel of the Court of Appeals for the Ninth Circuit is scheduled to hear oral arguments in the case in September. (If the Supreme Court declines to review the case, the appeal in the Ninth Circuit will go forward; if it accepts the case for review, the Ninth Circuit appeal will end.)
As Chris Geidner reports in MetroWeekly, Solicitor General Donald Verrilli Jr., the DOJ's top appellate litigator, argues in the petitions to the Supreme Court that a single question is presented by the cases, "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State."
The Supreme Court is expected to decide whether it will consider the cases by September. If it does decide to review them, arguments are likely to scheduled in late 2012 or early 2013, and a decision reached by June 2013. Thus, it is possible that Section 3 of DOMA may be declared unconstitutional within a year.
The Proposition 8 case, Perry v. Brown, has also been appealed to the Supreme Court, so it is possible that the Supreme Court may include on its 2012-2013 docket both DOMA and Proposition 8 cases.
Most gay and lesbian legal scholars are hoping that the Court decides to hear the DOMA cases, but refuses to hear the Proposition 8 case. If that happens, the Ninth Circuit's decision declaring Proposition 8 unconstitutional will stand, and same-sex marriages may finally resume in California, perhaps as early as September.
The DOJ's attempt to fast-track the DOMA cases may reflect the fact that at this point several courts in at least three different circuits have declared Section 3 unconstitutional. The cases are, therefore, "ripe" for review.
As Lambda Legal staff attorney Tara Borelli said in response to the news that the DOJ asked the Supreme Court to hear the Golinski case, "This development highlights the desire by all, the government included, to resolve this issue quickly. It is clear to us, to the Solicitor General and to the Department of Justice that DOMA's days are numbered. The last four courts to consider the question have all found Section 3 of DOMA--which prohibits the federal government from recognizing same-sex couples' valid marriages--to be unconstitutional."
A question that arises, however, is what happens if President Obama is not re-elected and a new Attorney General decides to defend the constitutionality of DOMA.
A related question about a Supreme Court review of DOMA is what happens if Justice Elana Kagan, former Solicitor General of the United States, recuses herself from hearing the cases. If so, there may be a 4-4 decision regarding DOMA's constitutionality. In a 4-4 decision, the lower court decisions are upheld, but without precedential value.
Would such a decision be sufficient to pronounce Section 3 of DOMA unconstitutional in all circuits?
I for one hope that Justice Kagan ultimately decides not to recuse herself. Justice Scalia and other conservatives have routinely decided cases in which they have blatant conflicts of interest and have indicated very clearly that they have pre-judged the issues. Whatever involvement Justice Kagan may have had with DOMA cases when she was Solicitor General is unlikely to rise to the level of incapacitating her from considering the constitionality of Section 3 fairly.
In any case, it is well to remember that even if the Supreme Court invalidates Section 3 of DOMA, it is unlikely to issue a broad ruling asserting that same-sex marriage is a fundamental right. More probable would be a decision declaring that the federal government must recognize same-sex marriages performed in jurisdictions in which same-sex marriages are legal.
In the video below, from May 31, 2012, Lawrence O'Donnell, David Boies, and Zach Wahls discuss the First Circuits ruling declaring the Defense of Marriage Act unconstitutional.