Marriage in the Balance
BY E.J. Graff
September 24 2012 4:00 AM ET
GLAD’S LEADING LADIES The leading plaintiffs in Gill v. Office of Personnel Management and Pedersen v. Office of Personnel Management, (from left) Nancy Gill, Marcelle Letourneau, Joanne Pedersen, and Ann Meitzen.
Why would DOJ do such a thing? As you may remember, in February 2011 the Department of Justice announced that it believed DOMA was unconstitutional — that was a big deal — and that it would no longer defend the law in court. The John Boehner-led House of Representatives ordered the Bipartisan Legal Advisory Group to take up the defense, spearheaded by high-profile constitutional lawyer Paul Clement. DOJ has been fighting on our side since then. Why might it ask the Supremes to jump ahead of the Ninth Circuit (which, being the most liberal appeals circuit, will probably strike down DOMA section 3) and take a California case alongside the Massachusetts cases?
I’ve heard two reasons. Several experts think it’s because Justice Elena Kagan, who was Obama’s solicitor general when the Massachusetts cases were under way, might feel compelled to recuse herself, which could leave a 4-4 court. Gary Buseck, GLAD’s legal director, thinks that she needn’t, but he won’t take bets. Buseck thinks DOJ asked the Supremes to take Golinski for another reason: consistency. In the Massachusetts cases, DOJ was for DOMA at the trial court — but was against it on appeal. That means BLAG can use DOJ’s own arguments against it. In Golinski, by contrast, DOJ always argued against DOMA and for a higher standard of review — a standard that Golinski trial court judge Jeffrey S. White granted in his decision. (Both DOJ and BLAG declined to comment on ongoing cases.)
After DOJ asked to have Golinski go straight to the top, no one wanted to be left behind. While no one will admit to this on the record, pro-equality legal eagles naturally feel a little competitive about who will have the landmark case. The American Civil Liberties Union asked the Supreme Court to hear its DOMA case, Windsor v. United States, in which a New York widow — after more than 40 years with her partner, two of those years as a married couple — faced a $363,000 tax bill when her wife died, instead of the $0 tax bill she’d have paid if inheriting from a husband. And GLAD asked the Supremes to take Pedersen v. Office of Personnel Management, which is just like Gill but representing couples married in Connecticut, New Hampshire, and Vermont. In both Windsor and Pedersen, the trial court judges struck down DOMA; the Second Circuit Court of Appeals would probably do the same, just as the Ninth Circuit probably would in Golinski. (It’s hardly a surprise that our lawyers haven’t challenged DOMA on behalf of Iowa’s married same-sex couples, deep in the conservative Eighth Circuit.) No one expects the Supreme Court will take all five; legally, they’re essentially Xerox copies.
Time for the Crystal Ball
So what’s going to happen? You’ll soon know which DOMA cases the Supreme Court will take and whether or not it will hear Perry, the Prop. 8 freedom-to-marry case.
If the court does take up Perry, be afraid, be very afraid. Almost no one believes the Supreme Court is ready to get out ahead of American opinion on the question at Perry’s heart: Do same-sex couples have a fundamental right to marry under the U.S. Constitution? Maybe the Supremes would be ready to say this in 10 years, after LGBT forces have repealed most of the state mini-DOMAs, replacing them with marriage equality in all but a handful of Southern states. But not yet. Anyway, the Ninth Circuit already struck down Prop. 8, brilliantly writing a very narrow opinion that applies only to California, given its weird history of having its top state court rule that same-sex couples could marry, then whisking marriage away by popular vote.
But breathe a sigh of relief if the Supreme Court does not take Perry’s appeal, because that means California’s same-sex couples will be able to marry once again, given the neatly delimited judgment issued by the Ninth Circuit.
“Having marriages happen again in California would be such a wonderful development for the country,” says James Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender, and AIDS Project. “It would instantaneously double the number of people living in freedom-to-marry states,” thus adding cultural momentum for marriage equality. He adds, “The Olson-Boies team has done a fabulous job of litigating the issue. They ran a great trial, put on great evidence, and persuaded the country that there’s no there there. They’ve been enormously helpful in moving the country.” And that’s really enough. The good news: The general opinion is that the Supreme Court will decline to hear Perry because, as Lyle Denniston of SCOTUSBlog wrote in an email, that would mean “the court does not have to answer…any issue about a right to gay marriage, and I think the court will be happy to be spared that obligation.”