Republicans Appeal DOMA Cases to US Supreme Court


Lawyers acting on behalf of the Republican House leadership on Friday filed with the US Supreme Courtan appeal of two of several Defense of Marriage Act cases.

Reports the Washington Blade:

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 theRomer 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.


Related Reading:

House GOP Advances Religious Right to Condemn Gay Soldiers

US House Votes to Tie Obama’s Hands on DOMA

Boehner Doesn’t Want Gay Soldiers Having Equal Benefits

Image used under the Creative Commons Attribution License with thanks to House GOP Leadership.


Annmari Lundin
Annmari L5 years ago

Stop wasting tax payers money on keeping discrimination!

Barbara T.
Barbara T5 years ago

This guy needs to be replaced. ALL he has done since getting the position is cause problems and dissection. WHY waste money on this. For GOD sake they deserve the benefits. I know lets send him to Afghanistan and see how that works out. He could cry his way through the country. Come on get a life and get on with it you've caused enough problems for so many already.

Evelyn M.
Evelyn M5 years ago

What a waste of taxpayer money

Dr Clue
Dr Clue5 years ago

There never has been any rational basis for DOMA, and same has been but religious pandering.

Dr Clue
Dr Clue5 years ago

It will be interesting to see if the SCOTUS takes on the case or punts.
If they do take it on, the next question will be at what scope they actually decide to rule.

Then finally after all that , which flavor of 5-4 decision we will get.

Much like the citizens united decision, the public will read a lot into the decision, no matter what the declared basis of consideration is.

Personally , I've always considered marriage as relates to government involvement to be a contract issue in which the 14th amendment's equal protection clause takes precedence.

The separation of church and state embodied in the 1st amendment should preclude an honest jurist from giving religious arguments any weight at all.

Dorothy A.
Dorothy A5 years ago

Thanks Michael T. I agree wth you once again. And to Dianna M. I'll vote for you! I don't know where you live, but with all the voter fraud going one will notice.

I think what we are dealing with here is the tyranny of certainty. They cannot be wrong. They will deny everything that is obvious in order to not be wrong. Being wrong is the end of the world as they know,it. I wonder if that's what's coming?

Karen Howard
Karen H5 years ago

Michael T, you're so right. The Republicans want to focus on stuff that doesn't matter so they can berate Obama for anything and everything. They seem to forget he inherited so much of this from Bush.
What difference does it make to them as individuals if same sex couples get married? They'll probably stay married longer than male/female marriages!

Gary A L.
Gary L5 years ago

the gaul of speaker boner knows no bounds he is as all republinazi's are a traitor to America

Lloyd H5 years ago

Interesting, Boehner is having his illegally hired and paid for Lawyers take the case to the Supreme Court. Also interesting that the PropHate trials has already shown that absolutely none of the 'rational basis' arguments are pure crap with even the experts for PropHate admitting under oath that there are no rational reasons to discriminate against same sex couples and deny them marriage equality. 1967 Loving v. Virginia, SCOTUS decision: Marriage is one of the "basic civil rights of man,"....To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statues, classifications so directly subversive of the principal of equality at the heart of the the 14th Amendment is surely to deprive all the States citizens of liberty without due process of law. The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under the Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and can not be infringed by the States." To uphold DOMA or PropHate SCOTUS must essentially reverse Loving, which is going to be a real problem for Justice Thomas and his wife.

John B.
John B5 years ago

Get the this mouth piece of the religious right and corporations along with all the other Rethug politicians out of office so we can stop the wasting of our tax dollars on the war against women and minorities and then we can get on with the important issues facing this nation. People vote and work for progressive candidates. Democracy is not a spectator sport. Thanks Steve for the article.