House GOP Pushes Gay Marriage Toward Supreme Court

SupremeCourtSunJohn Boehner and his fellow House Republicans are reportedly ready to take the next step in their defense of DOMA, the law that forbids federal recognition of same-sex marriage.

According to Metro Weekly, GOP leadership on the House Bipartisan Legal Advisory Group will soon ask the Supreme Court to decide whether that 90s-era legislation violates the Constitution.

Just last month, a Massachusetts court, deciding Massachusetts v. U.S. Department of Health and Human Services, ruled that DOMA does indeed violate same-sex couples' protected rights.

We've long expected GOP leadership to take this case, which the Department of Justice refuses to defend, to the court, but they had until the end of August to make it official. Clearly they're chomping at the bit on this one, a case that could potentially null and void a number of related cases.

The news came today in another challenge to DOMA's federal definition of "marriage" and "spouse" contained in Section of the 1996 law. That case, Pedersen v. Office of Personnel Management, was brought by Gay & Lesbian Advocates & Defenders, and BLAG's counsel today asked the court to put that case on hold.

One of the reasons for doing so, BLAG's lawyers said, is because a Supreme Court decision on the constitutionality of Section 3 of DOMA would answer the questions raised in the Pedersen challenge.

After BLAG files its petition, other parties have 30 days to file their view. The GLAD plaintiffs, Massachusetts, the Department of Justice and other interested individuals and organizations will be able to give their input as to whether the court should take the case. The court then will consider whether it wants to take the case, a question most scholars expect it to answer in the affirmative as the constitutionality of a federal statute is at issue. It could, however, hold the case in order to await a decision on one of the further DOMA challenges.

If the court takes the case, it could be put on the docket for October of this year, right before the election, which means social issues may very well eclipse the economy as the main topic of conversation before voters head to the polls.

Considering a majority of Americans, including President Obama, support marriage equality, the GOP's decision could inadvertently hurt Mitt Romney, the Republican candidate who continues to oppose marital progress.


  1. MikeW says

    I think the GOP just wants to pass it over to the Supreme Court so that if DOMA is struck down they can wash their hands of it AND complain about activist judges at the same time.

  2. Javier says

    No, they want it to go to the US Supreme Court because they know that there is no way this conservative Supreme Court will find a constitutional right to same-sex marriage. They know this, and so should we. As for the notion that a majority of Americans support same-sex marriage, I would be careful about citing opinion polls to support that claim, in light of the fact that voters still continue to vote against gay marriage time and time again. We look foolish when we cite such polls yet voters in every state have voted anti-gay when given the opportunity. Opinion polls are not votes.

  3. Bill S. says

    The case is actually Gill v. Office of Personnel Management, which argued against DOMA on 5th Amendment Due Process grounds. Massachusetts v. Department of Health and Human Services was argued alongside it on 10th Amendment grounds. This decision was not affirmed on appeal and has been mainly abandoned. It will be Gill v. OPM that will advance to the Supreme Court.

    Also, the court that issued its decision last month is the 1st Circuit Court of Appeals. Although based in Boston, it is not a Massachusetts court. It is a federal court with jurisdiction over Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico.

  4. kpo5 says

    “No, they want it to go to the US Supreme Court because they know that there is no way this conservative Supreme Court will find a constitutional right to same-sex marriage.”

    Javier, this case is by no way the conservative cakewalk you’re making it out to be. I will be sincerely shocked if Kennedy sides with the other four on this one. This isn’t necessarily about a constitutional right to same-sex marriage, this is about Section 3 of DOMA being unconstitutional.

    I think MikeW is on to something; though we probably wouldn’t get a ruling until after the election; this will still allow the rabid righties to claim we’re trying to “distract” from what’s happening in the economy. I’m sure GOProud will gladly echo that, anyway.

  5. says

    “No, they want it to go to the US Supreme Court because they know that there is no way this conservative Supreme Court will find a constitutional right to same-sex marriage.”

    @Javier: As KPO5 says, this isn’t necessarily about a broad constitutional right to marry. The DOMA cases are much more narrow and concern couples who are already married. The cases weren’t brought by starry-eyed gay people who think the world loves us. While the conservative activism of the current SC should make everyone nervous, there is a reason why we win in the courts more often than at the ballot box. The constitution is on our side; people in anti-gay-majority states are not. (Many pro-equality states don’t have ballot referendums.)

  6. anon says

    This is another attempt to up the evangelical vote in November because Mitt R. is not getting that vote out in large enough numbers.

  7. says

    I doubt the supreme court would be able to deny gay marriage. They have to have a valid legal justification for doing it, but there is no legal precedence that indicates that there is any reason that the federal government has the right to prevent any two people to marry.

  8. Terry says

    The Supreme Court isn’t stupid. If they rule against us, we will rise up and make Stonewall look like a country picnic. Anyway, DOMA is ridiculous on its face, and it’s the law we really need rejected.