When the justices of the U.S. Supreme Court gather for their November 30 conference, they will face an array of same-sex marriage related petitions that have arrived at the court in an unusual confluence of timing and strategic litigating.
Scheduled for that conference are 10 petitions, which, after counting cross-petitions as one, essentially make seven cases. The majority home in on Section 3 of the federal Defense of Marriage Act (DOMA). That section defines marriage for all federal purposes as between a man and a woman.
“It’s kind of unbelievable,” said Douglas NeJaime of Loyola Law School, Los Angeles, about the timing. He added that it puts pressure on the court to decide the central question about DOMA: whether Section 3 is unconstitutional as applied to legally married, same-sex couples. “There is no legitimate reason to delay nationwide resolution of the DOMA question,” he said.
The justices have little choice but to grant review, said Paul Smith, head of the appellate and Supreme Court practice at Jenner & Block, who is working with lawyers for Gay & Lesbian Advocates & Defenders (GLAD) in one of the cases.
“They pretty much have to because a federal statute has been held unconstitutional by two circuit courts and by a number of district courts,” he said. “They can’t let it lie. If they deny cert, presumably all stays expire and thousands of people will be trying to invoke rights under federal law and that will cause lots of complexity.”
So many sexual orientation discrimination petitions arriving at the court in the same year is “fascinating,” and suggests “the calculated strategy” of gay rights advocacy groups, said NeJaime, who has written extensively about social movements and sexual orientation discrimination.
“I do think there is an analogue to civil rights advocacy,” he said. “Unlike this, where we have all of these petitions pending in the same year, you had the court routinely deciding civil rights petitions year after year, not only Brown v. Board of Education. There were a host of civil rights cases around the country constantly going up to the court. The dynamic is in some ways similar here. Some of this litigation is brought by big gay rights organizations, like Lambda Legal Defense and Education Fund, just like big civil rights organizations, like the NAACP, did. Some is brought by new organizations, like the one behind the challenge to [California's] Prop. 8, and we saw some of that in the civil rights era as well.
“It is all about that race to the court,” he said.
REMOVING RIGHTS AND BENEFITS
The non-DOMA petitions are Brewer v. Diaz and Hollingsworth v. Perry. Brewer comes out of Arizona, where voters in 2008 amended the state constitution to define marriage as between a man and a woman. The state provides health care benefits to its employees and their dependents. In 2008, a state regulation expanded the definition of “eligible dependent” to include a “domestic partner,” defined as a “person of the same or opposite gender” who had lived with the employee for at least a year before applying for benefits, was financially interdependent with the employee and met other qualifications. It also amended the definition of “child” to include a domestic partner’s child.
However, in 2009, in the middle of a budget crisis, according to the state, the legislature passed a law redefining which state employees’ dependents could receive benefits and limiting them to spouses and children. The law was challenged as discriminating against gay and lesbian employees. A district court granted a preliminary injunction, and the U.S. Court of Appeals for the Ninth Circuit affirmed and denied en banc review, agreeing that the challengers showed a likelihood of success on the merits. The circuit court said that “when a state chooses to provide benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular.”
Arizona is represented by Paula Bickett, chief counsel of Civil Appeals, who argues the law meets the equal protection clause’s rational-basis test. The challengers’ counsel is Tara Borelli of Lambda Legal, who urges the court to deny review because their claim has not been fully developed yet and is not ripe for review.
Hollingsworth v. Perry is the appeal by proponents of California’s Proposition 8, which bans same-sex marriage in that state. The Ninth Circuit ruled narrowly that Prop. 8 violated the Constitution because once the right to marry had been given to same-sex couples, as it had been given, the right could not be withdrawn.
However, the Prop. 8 proponents, represented by Charles Cooper of Cooper & Kirk, ask the Supreme Court a broad question: whether the equal protection clause of the 14th Amendment prohibits the state from defining marriage as between a man and a woman. Prop. 8 opponents are represented by Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner. Olson argues the petition should be denied because there is no conflict among the circuits; the Ninth Circuit decision is a straightforward application of the justices’ precedent in Romer v. Evans, and the Prop. 8 proponents have a standing problem.
“Brewer is different because it doesn’t raise a marriage question at all,” said NeJaime. “It’s an interesting case when put side by side with the Prop. 8 case. Both raise the question when can a state take away what it has given, even if what was given was not constitutionally required. When can a state discriminate against same-sex couples based on sexual orientation?”
Brewer is the wild card and has “broad implications,” said Smith. “The issue of marriage rights gets in the back door.”
NeJaime suggested that voter approval of same-sex marriages in four states in the recent election may cut against review of Prop. 8. “It suggests there is a clear trend of states recognizing same-sex marriage and now we see it moving past legislatures and towards popular votes,” he explained. “That being said, it only takes four votes to grant cert, and I would think three of the more conservative justices might want to strike down the Ninth Circuit on this.”
There are three petitions out of the First Circuit, stemming from its ruling that Section 3 of DOMA violates equal protection as applied to legally married same-sex couples but does not run afoul of the 10th Amendment and the spending clause.
In Bipartisan Legal Advisory Group of the House of Representatives (BLAG) v. Gill, House Republican leaders, represented by Paul Clement of Bancroft, challenge the First Circuit ruling as well as what they call that court’s “previously unknown standard of equal protection review.” The counsel for the DOMA challengers is Mary Bonauto of GLAD. Clement represents BLAG in all petitions in which BLAG is a party or has intervened to defend DOMA.
The two other petitions — Dept. of Health & Human Services v. Massachusetts and Massachusetts v. Dept. of H&HS — both urge the justices to grant review of the DOMA question. Massachusetts, represented by Maura Healey, chief of the Public Protection and Advocacy Bureau, also urges the court to answer the 10th Amendment and spending-clause issues pressed in the lower courts by the state.
In U.S. v. Windsor and Windsor v. U.S, Edith Windsor and the federal government urge the Court to grant review of the Second Circuit’s ruling that Section 3 violates equal protection. The circuit court applied heightened scrutiny — the preferred test by the Obama Justice Department.
Windsor’s counsel is Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, working with the American Civil Liberties Union. The federal government recently told the court that of all the DOMA petitions, it prefers review in Windsor because of the heightened scrutiny standard used by the appellate court. BLAG’s Clement, however, has objected, saying Gill is “far superior” and does not have a standing problem that he claims exists in Windsor.
The DOMA question is also presented in Office of Personnel Management (OPM) v. Golinski and OPM v. Pedersen. Golinski is a petition for review before judgment by the Ninth Circuit, and Pedersen also is pending in the Second Circuit. Karen Golinski’s high court counsel is Jon Davidson of Lambda Legal. Joanne Pedersen is represented by GLAD’s Mary Bonauto.
“We now have every reply to the reply to the reply,” chuckled Jenner’s Smith, adding there are no past clues to suggest what the justices will do. The lawyers challenging DOMA have been working together, he said, noting there is a long history of coordination among GLAD, the ACLU and Lambda. “There has been a lot of effort to make sure whatever case it is, it is the strongest possible one. “All I really think the court should do is take the case they think is the most appropriate,” he added. “While the cases are all as-applied challenges technically, all the justifications are the same across the board.”
Marcia Coyle is the chief Washington correspondent for The National Law Journal, a Legal affiliate based in New York.