The DOJ Takes Aim at DOMA

Late on Tuesday, when just about everyone had already left for their Fourth of July celebrations, the Department of Justice announced that it was asking the Supreme Court to take two DOMA lawsuits, promptly. The first was no surprise: You know that the First Circuit already, very cautiously, declared in the Massachusetts cases (Gill v. OPM) that DOMA’s Section 3 was unconstitutional. That’s the section that says that, for federal purposes, marriage is between one man and one woman—and therefore that the United States will refuse to recognize any state’s decision to marry same-sex pairs. It’s because of DOMA Section 3 that I’m married in Massachusetts but not in the United States. If that were overruled, the federal government would have to treat me as married, for purposes such as taxes, social security, inheritance, and so on. I wouldn’t have to file as single hither but as married yon.  

You recall the backstory here, right? Last year, Obama’s Justice Department declared that it would no longer defend DOMA, because it believed the act to be unconstitutional—although the rest of the administration says it is continuing to enforce DOMA, as is its constitutional duty. So John Boehner’s House of Representatives put together BLAG—the Bipartisan Legal Advisory Group—to do the defending. Last week, BLAG asked the Supreme Court to overturn the First Circuit’s decision in Gill. The Department of Justice weighed in, asking the Supreme Court to uphold—arguing against the government’s own law.

So here’s the inside-baseball surprise: DOJ also asked the Supreme Court to rule on the California case Golinski v. OPM, which has been decided by a trial court but hasn’t yet been reviewed by the Ninth Circuit. That’s what made my head tilt like a confused puppy. Why ask to add that particular case, of all the DOMA challenges out there? Why not, say, the Edie Windsor case, which I wrote about here recently?

(Side note: Remember, Golinski is not the famous Boies-Olson challenge to California’s Prop 8; that’s Perry. Perry has nothing to do with DOMA. Rather, it’s a right-to-marry case that the Ninth Circuit’s decision trimmed to affect only California. In Perry, we hope SCOTUS will refuse to review, thereby letting the Ninth Circuit decision stand—and thus allowing California same-sex couples to marry, while affecting no other states. Golinski, by contrast, like Gill, says basically: "My state married me. The states get to decide who’s married; if the United States believes in equal protection under law, it cannot pick and choose which legally valid marriages it will and will not treat as marriages. So ignore Congress’s invalid law and recognize my valid state marriage, please.")

I made some calls to ask sources why DOJ filed this. Short answer: No one knows. Longer answer: For outside lawyers (I was told), trying to interpret the Department of Justice’s actions is like trying to understand the actions of the Kremlin or the Vatican. It’s impenetrable. There are long-term institutional interests, competing factions, many layers of internal review, and no way to know exactly which long-percolating intentions or debates have come to the fore. Maybe DOJ wants the Supreme Court to consider the fact that, in the Golinski case, the trial court declared that heightened scrutiny was appropriate, as the Ninth Circuit has previously declared—while the First Circuit (and therefore Gill) is using “rational basis” instead.

(Side note: I know, I really have drunk the legalese Kool-Aid, haven’t I? Roughly, as I understand it, “heightened scrutiny” means that the court really, really has to examine any law for bias, because the group being affected is traditionally a disfavored group. “Rational basis” means any old reason for passing the law is fine, because legislatures get to pass laws when they want to, as long as they have a reason and the constitutional authority to do so.)

Or maybe DOJ didn’t want a Ninth Circuit decision to come up for review, since the First Circuit’s anti-DOMA decision was written so cautiously by such a well-respected conservative judge, Michael Boudin, while the USSC loves to overrule the Ninth Circuit. Or maybe DOJ was close to filing its petition when Windsor came down and just didn’t bother to backtrack to add that one in too. Who knows?

But here’s what matters to me: Everyone thinks that the Supreme Court will—at a minimum—review Gill and Massachusetts this term—and that by either a 5-4 or 6-3 decision, the Court will declare DOMA Section 3 unconstitutional. My sources say that when a federal court declares an Act of Congress unconstitutional, the Supremes will take it, period. And right now, half a dozen different courts have declared DOMA section 3 to be unconstitutional. What’s more, both Congress—represented by BLAG—and the executive branch—represented by DOJ—are now asking SCOTUS to review DOMA. As one lawyer told me, asking for anonymity for his personal interpretation since he represents a larger organization, “BLAG’s petition was written in a way that takes aim at the Obama administration, saying the executive dropped its responsibility to defend this law. Consequently, we are now engaged in twelve separate pieces of litigation on the same issue. We’re a legislature! This is not our job. You, Court, are the only ones that can put us out of our misery. Please decide this once and for all.

The same source, who’s been right on peculiarly small LGBT points of law for 15 years now, tells me, “I can’t envision losing Kennedy’s vote. The man who wrote Romer, the man who wrote Lawrence, would change his mind on a simple and straightforward equal-protection case that doesn’t impose marriage on any state? He’s such a believer in federalism, and this involves Congress sticking its nose in something it never stuck its nose in before.” And here’s the brain-spinning part: My sources say that Roberts could well decide to be on the right side of history as well, for the same reasons he decided in favor of the ACA and slapped Arizona on immigration.

After all, after about half a dozen decisions, not a single federal court has yet upheld DOMA Section 3. Given the polling, no one has any doubt which way same-sex marriage is heading. A win at the ballot box in any of the four states that are voting on marriage equality this fall will only help give the Supreme Court more confidence about declaring that the federal government must offer equal treatment to same-sex marriages made in Massachusetts, Connecticut, Vermont, New Hampshire, New York, Iowa, and Washington, D.C. (and perhaps, after November, also in Maine, Maryland, and/or Washington).

I’ve already put in my request for my Supreme Court press pass, and my fabulous editor says he will get me one. By June 2013, I might be married in the United States. Will I still be married when I visit your state—say, North Carolina, Florida, or Texas? Ah, that’s a question for another day. Stay tuned!

Comments

Wouldn't it be better to have all the benefits and protections of marriage in most states and the federal recognition and benefits of marriage but in the form of state Civil Unions defined as marriage minus conception rights, but give up the claim for equal procreation rights that come with marriage?

I think making that claim for equal procreation rights is what makes so many states reject Civil Unions, because they see them as temporary stepping stones to SSM. If we permanently prohibited same-sex procreation and permanently protected marriage's procreation rights, we'd end same-sex marriage in every state that allows it, and then CU's would not be stepping stones to marriage and we'd see most states enact CU's to help thousands of same sex families.

What is more important, having the equal right to procreate with someone of the same sex, or getting protections and security to thousands of same-sex couples in the form of CU's?

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