The legal group that has successfully argued to three different courts that the Defense of Marriage Act’s federal definition of marriage is unconstitutional today agreed with the House Republican leadership in a filing to the Supreme Court that the court should hear one of the group’s cases in the upcoming term.
But Gay & Lesbian Advocates & Defenders attacked the Republicans’ legal filing at the court as being full of errors and inaccurately describing the appeals court decision striking down the law in May.
GLAD filed the brief in the Supreme Court telling the court that the House Republican leaders “failed below to offer any legitimate argument why the federal government has any policy interest in equalizing the federal legal status of all same-sex couples irrespective of their actual marital status.”
Responding to the House Republican leaders’ filing in June on behalf of the Bipartisan Legal Advisory Group (BLAG) — which Republicans control 3-2 — GLAD lawyers wrote today that “the arguments for a grant of review in this case are strong” — but also noting that “the Court should not be swayed by the arguments on the merits that BLAG chose to present in its petition.”
In Nancy Gill’s case, in which she and her wife, Marcelle Letourneau, have joined with several other plaintiffs to sue the government for failing to recognize their marriages to people of the same sex, U.S. District Court Judge Joseph Tauro found the 1996 law unconstitutional in 2010. In February 2011, the Obama administration stopped defending the law in court because President Obama determined that the law was unconstitutional, and the House Republicans have been defending the law since.
This May, the U.S. Court of Appeals for the First Circuit agreed with Tauro that the law is unconstitutional in a unanimous three-judge decision that led the House Republicans to ask the Supreme Court to take the case to overturn the appeals court’s decision.
The appeals court held that laws that classify people based on sexual orientation should be examined based on the lowest level of court review, called rational basis scrutiny. It held that because it believed it was limited to do so by a prior decision of the First Circuit and because the Supreme Court has not yet addressed whether sexual orientation classifications should be subject to heightened scrutiny like classifications based on race or sex, for example.
In applying rational basis, however, the appeals court applied a line of Supreme Court cases that include Romer v. Evans, a 1996 Supreme Court case the struck down a Colorado constitutional amendment approved by voters that prohibited cities like Denver from adopting nondiscrimination ordinances to protect gay, lesbian or bisexual people from discrimination.
In today’s filing, Gill’s lawyers respond to that, writing, “BLAG devotes much of its Petition to arguing the merits of the case, contending that the First Circuit erred by ‘inventing and applying to [DOMA] . . . a previously unknown standard of equal protection review.’ This does not accurately characterize the First Circuit’s holding or analysis.”
Gill’s lawyers go on to write, “Based on the First Circuit’s recognition that this Court’s precedents do not apply some one-size-fits-all rational basis review but rather apply rational basis review with sensitivity to the context in which the cases arise, BLAG accuses the First Circuit of ‘deviat[ing] from settled law,’ and ‘inventing’ a new form of equal protection review. Not so.
“[T]he First Circuit accurately captured the nuances of rational basis review as requiring an examination of whether a law’s justifications are simply pretexts for discrimination against a disfavored group.”
The brief goes on to discuss an argument primarily advanced by Massachusetts Attorney General Martha Coakley in a case that was decided along with GLAD’s case: DOMA’s claimed interference with the rights of states like Massachusetts to have their decision to allow same-sex couples to marry be recognized by the federal government.
As Gill’s lawyers note, today’s filing — and the filing of the House Republican leaders and Department of Justice that preceded it — are not supposed to focus on the “merits” of the argument over whether DOMA is constitutional or not, but rather is supposed to focus on whether or not the Supreme Court should take the case.
After the court returns from its summer recess, it will look at the filings in this and two other DOMA challenges — one brought by Lambda Legal and the other by the American Civil Liberties Union — and decide if it will hear any or multiple cases. Because the First Circuit’s decision in Gill’s case struck down the law, most legal experts expect that the court will take at least one of the cases.