The Obama administration has asked the Ninth Circuit Court of Appeals to bypass a three panel review and send a Defense of Marriage Act appeal straight to the full 11 judge panel, hoping for a quicker, and potentially precedent-setting, outcome.
But Obama’s Justice Department asked the full appeals court Monday to bypass the customary three judges and convene an 11-judge panel.
That procedure would not only expedite the case – the larger panel is the last step before Supreme Court review – but also enable the court to set a stricter standard for laws that deny equal treatment. The panel could overturn the circuit’s 1990 ruling allowing such laws to be upheld if they have any rational justification.
The case involves Karen Golinksi, a federal court worker who is suing to be able to enroll her wife in a federal family insurance plan.
The Obama administration, per its February 2011 determination against Section 3 of the Defense of Marriage Act, is backing Golinski’s case. Lawyers representing the House Republican leadership are defending DOMA in the administration’s place.
U.S. District Judge Jeffrey White declared the law unconstitutional on February 22 of this year and ordered Golinski’s wife be enrolled in the program. House lawyers have not in fact moved to stay that ruling but have appealed.
The DOJ’s request centers on a previous number of cases involving gay rights and what standard of judicial review is given to discrimination cases that involve sexual orientation. Currently, only the lowest of the three standards is used, however the DOJ believes that if the full Ninth Circuit conducted a fresh review — not tied to a previous ruling — they would find that the medium standard of review would be applicable.
The DOJ asks therefore that the Court grant an 11 panel full Ninth Circuit review to examine this point, saying:
“Whereas a panel of this Court would need to examine whether High Tech Gays continues to bind panels of this Court, the en banc Court could avoid that inquiry and could instead directly consider afresh whether, as the government argues, heightened scrutiny applies to classifications based on sexual orientation.”
The DOJ also argues:
“And because the resolution of that threshold question will have substantial implications for the resolution of this case, en banc consideration is warranted to provide an expeditious and definitive resolution to plaintiff’s challenge to Section 3 of DOMA.”
The Obama administration has also asked for an expedited three panel hearing should the request for an immediate en banc hearing be denied, and that a hearing be scheduled no later than September of this year.
By any standard this is a robust move by the DOJ that seems geared toward getting the Golinski case before the Supreme Court of the United States in as quick a time as possible, and potentially with a higher standard of judicial review having been set. This alone would constitute a strong position for LGBT rights advocates.
BLAG, the House Leadership’s lawyers, is said to be filing a court reply in due course.
For a full breakdown on the legal cases involved in this DOJ request, please click here.
In terms of LGBT rights a three-member panel of the Ninth Circuit most recently ruled Proposition 8 to be unconstitutional, but how they will deal with the Golinski case will be of keen interest to both supporters and opponents of marriage equality alike given the significant legal questions that are attached.