Lawyers acting on behalf of the Republican House leadership on Friday filed with the US Supreme Court an appeal of two of several Defense of Marriage Act cases.
The court ruling that was appealed was the First Circuit Court of Appeals decision in the cases of Gill v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders, and Commonwealth of Massachusetts v. Department of Health & Human Services. On May 31, the appellate court issued a decision that Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, was unconstitutional as a result of both cases.
In the filing, Boehner’s attorneys present two questions to the Supreme Court: (1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.
“As the First Circuit recognized, this case calls out for this Court’s review,” the filing states. “The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible.”
The original court ruling in Gill v. Office of Personnel Management as rendered by Federal District Court Judge Joseph Tauro last year specifically said that DOMA “fails to pass constitutional muster even under the highly deferential rational basis test,” this being the lowest form of judicial scrutiny.
The First District Court of Appeals, sidestepping this notion, instead pointed to the Romer case, believing DOMA should be assessed against suspect-class categorization; sexual orientation has not explicitly been given suspect classification but, starting with Romer, legislation that specifically discriminates against citizens on grounds of their sexual orientation has been found deserving of a closer reading.
On this basis the appeals court found that a quasi-intermediate level of review was applicable and, as Care2 blogger Jessica Pieklo pointed out at the time the opinion was issued, because Congress failed to memorialize the need for discriminating against same-sex couples, the law was found to violate the U.S. Constitution. This is the standard of review that House lawyers have taken exception to, and no doubt they would like the Supreme Court to throw the case out on grounds that the appeals court acted improperly by employing a manner of reading that was not merited.
The filing also points the finger at the Obama administration for refusing to defend Section 3 in court, saying this amounts to a separation of powers issue that only the Supreme Court can adjudicate.
The Obama administration, after a lack of judicial precedent allowed it to carry out its own review of the law, issued notice on Feb. 23, 2011, that it had determined DOMA’s Section 3, which precludes gay and lesbian couples from words like “spouse” and therein the federal benefits conferred under those terms, violated the United States Constitution. The administration left defense of the law to be taken up by Congress if it so chose, and House Republicans, forcing the Bipartisan Legal Advisory Committee’s hand with a 3-2 Republican to Democrat majority, duly took up defending the law.
House Minority Leader Nancy Pelosi, who has been a constant voice of criticism over the House’s million dollar defense of DOMA, said in a statement on Friday:
“Today, Speaker [John] Boehner and House Republicans decided to waste more taxpayer funds to advance a position rejected by four different courts and to defend discrimination and inequality before the highest court in the land.”
She went on to say, “Democrats have rejected the Republican assault on equal rights, in the courts and in Congress. We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law. And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all.”
With this filing, Plaintiffs have 30 days to lodge a reply, after which the Supreme Court will decide whether to take up this case or reject the appeal.
The House is currently involved in around 12 separate DOMA cases all at various stages in the federal court system.