Massachusetts Attorney General Martha Coakley Tuesday petitioned the Supreme Court to hear a pair of cases challenging the federal definition of “marriage” and “spouse” in the Defense of Marriage Act in a move aimed at ending the federal restriction not just in Massachusetts, but across the country.
The cases that Coakley, a Democrat, is asking the court to take include the case she brought on behalf of Massachusetts and a case Gay & Lesbian Advocates & Defenders brought on behalf of several couples who had married in Massachusetts and claim they have since faced discrimination by the federal government, which doesn't recognize those marriages because of DOMA.
The cases already have had success in the lower courts: Earlier this year, a federal appeals court agreed that the federal government had to stop ignoring her state’s decision to allow same-sex couples to marry.
That ruling, by the U.S. Court of Appeals for the First Circuit, held that the DOMA’s limit on recognizing only marriages between one man and one woman was unconstitutional and that same-sex married couples should be treated equally under federal law.
But, today, the Democratic Attorney General's lawyers, representing Massachusetts, told the Supreme Court that it should take the cases because the question of whether DOMA's federal definition of "marriage" and "spouse" are constitutional "should be conclusively settled by this court."
Massachusetts, in a filing to the Supreme Court, states that it "normally would oppose further review in order to ensure that the judgment takes effect as soon as possible." Here, however, the state is urging that the court take the case because "the question is one of national importance" and "this Court is likely to review it in the near future, if only to ensure uniformity in the enforcement or non-enforcement of DOMA throughout the country."
The case that Coakley's office is asking the court to consider in its upcoming term that begins in October is one of three challenges to DOMA's federal definition of marriage.
The Massachusetts case, which had been heard and decided with a challenge brought by Nancy Gill and others and backed by Gay & Lesbian Advocates & Defenders, is the only of the three cases to have reached the Supreme Court through the usual route of a request to the Supreme Court after an appeals court decision.
Another case, brought by federal courts employee Karen Golinski, is before the U.S. Ninth Circuit Court of Appeals on the West Coast, and the Obama administration has asked the court to take either the Golinski case or Gill and Massachusetts cases.
The House Republican leadership has taken up the defense of DOMA since the Obama administration stopped doing so, and they — like Massachusetts — have urged the Supreme Court to take the Gill and Massachusetts cases.
The American Civil Liberties Union, meanwhile, this past week asked the court to take its case, brought by Edith Windsor, a New York widow who had to pay a $350,000 estate tax bill after the federal government refused to recognize Windsor marriage to Thea Spyer. That case is before the U.S. Second Circuit Court of Appeals, based in New York.
Today, however, the lawyers for Massachusetts argued that their case is the one that the court should take because it "presents the full range of constitutional challenges to DOMA, including challenges under the Tenth Amendment and Spending Clause that are best presented by a State."
Although the appeals court rejected those arguments as independent reasons to strike down the law, the lawyers today argued that the Supreme Court should be able to consider them directly if and when it considers DOMA's constitutionality. The arguments, advanced by Massachusetts since Coakley filed the case, are reasons beyond the claim pressed by LGBT advocacy groups that DOMA's federal marriage definition violates the constitutional equal protection rights of gay, lesbian and bisexual people.
In a footnote, Massachusetts also presses the court to resolve the level of scrutiny that courts should give to laws, like DOMA, that classify people based on sexual orientation. Under the Supreme Court's past case law, the court holds classifications based on race to "strict scrutiny," for example, and classifications based on sex to "intermediate scrutiny."
"Review of this question is particularly necessary because the courts of appeals have been reluctant to undertake the multi-factor analysis" required in order to decide whether one of those heightened levels of scrutiny applies, the lawyers for Massachusetts argue, or whether the "rational basis" standard used to examine whether there is a legitimate basis for most legislation is sufficient for examining sexual orientation classifications.
The Supreme Court will be receiving additional views on whether it should take one or more of these cases in the coming weeks and likely will determine the path it will take by the first week in October. At that time, a schedule would be set to have the case fully briefed on the constitutional questions, arguments would be scheduled, and a decision would be expected by July 2013.