Justice Department Pushes DOMA Cases Toward Supreme Court

SupremeCourtDOMAThe Supreme Court may have its docket full of LGBT-related cases come October, when it goes back into session.

Mere days after word spread that Republican House leaders want the justices to uphold DOMA, Prop 8 Trial Tracker reported late Tuesday that the Department of Justice's Solicitor General has asked the Court to review the constitutionality of DOMA as presented in two cases.

In one, Golinski v. the Office of Personnel Management, the Justices are asked to review the dismissal of a case brought by Karen Golinski, who is asking the government to grant her wife the same benefits bestowed upon straight spouses. A federal court ruled in February that the government was indeed violating the U.S. Constitution. Oral arguments about the case's nitty gritty were meant to be heard before the Ninth Circuit Court in September, but the Justice Department's move would bypass that hearing all together.

The Solicitor General is also asking for a writ of certiorari, or review, in the First Circuit mega-case Gill v. OPM/Massachusetts v. HHS, the case the GOP is using for its own discriminatory causes.

Lambda Legal staff attorney Tara Borelli said the move "highlights the desire by all, the government included, to resolve this issue quickly."

It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered. The last four courts to consider the question have all found Section 3 of DOMA – which prohibits the federal government from recognizing same-sex couples’ valid marriages – to be unconstitutional. DoJ’s action may speed the day when the Supreme Court reaches the issue.

While it is up to the Supreme Court to decide whether or not to hear Golinski now, we are confident that DOMA will be found unconstitutional – and the sooner, the better.

For real. Wouldn't it be nice to have this whole thing wrapped up by this time next year?

(Image via Angela Pan.)


  1. jamal49 says

    Roberts, Alito, Scalia, Thomas and Kennedy. Why does everyone think that it is a fait accompli that DOMA will be found unconstitutional? I’d say that’s wishful and dangerous thinking.

  2. Chadd says

    @ Jamal49: At least we know that Kennedy and most recently, Roberts can *sometimes* be convinced to consider the actual constitution and not rightwing ideology. We just need to remember that a President Romney could place one or two justices on the SC and tilt that court to the extreme right for Decades to come – and prevent us from reaching full equality for many, many years.

  3. kpo5 says

    “For real. Wouldn’t it be nice to have this whole thing wrapped up by this time next year?”

    Isn’t it impossible *not* to be wrapped up in a year? I mean, yes, they could refuse to hear it, letting Golinski play out in the 9th and letting Gill be law in the 1st, but that would be completely irresponsible, creating even more marriage tiers for LGBT couples.

    And Jamal, Kennedy is a guy who doesn’t like government getting involved at all. Since government is very much involved in marriage (and he’d be America’s least favorite person to cast a vote to take all federal bennies away from everyone), he can’t not agree that LGBT couples deserve the same. With Roberts in the mix, we could be looking at a 6-3 victory. Heck, maybe even Scalia will re-read his Lawrence dissent and make it 7-2…though I’m sure he’ll perform Constitutional contortionism to avoid that one.

  4. TC says

    Wrapped up? Really? Be careful what you wish for. Bowers v Hardwick was supposed to be a no-brainer. Look how quickly THAT got wrapped up.

  5. says

    I’ll echo: “whole thing wrapped up”? Not sure what you mean by that?

    Even with a good outcome on this (which is certainly plausible if the SC isn’t being a right-wing activist court), having a section of DOMA go down doesn’t mean full federal marriage equality for all. It would be a huge step in the right direction, with legally married couples able to get federal benefits, but it’s highly unlikely we’ll see a sweeping decision in any case that would wrap things up for many same-sex couples in the US in the near future.

    Marriage equality is inevitable but we have a ways to go to get there, given the anti-gay constitutional amendments in many states and the potential for a President Romney who supports a federal amendment to undo all existing same-sex marriages.

  6. disgusted american says

    Marriage equality is inevitable but we have a ways to go to get there, given the anti-gay constitutional amendments in many states and the potential for a President Romney who supports a federal amendment to undo all existing same-sex marriages.

    while understand your concern – dont think for 1 minute that the 10’s of 1000’s of gay cpls will just sit idley by – and allow OUR Marriages to be Nullified? I Think Not!!! You wanna see RIOTS….it will make Stonewall look like a God-damed tea-party, and at 52..with more yrs behind then ahead..Im WILLING to DIE for MY RIGHTS!

  7. Michaelandfred says

    While DOMA repeal isn’t the whole she-bang, it would be THE game changer. As of yet, we don’t have a case (maybe Illinois) that can force the SCOTUS to make a full marriage decision. But knocking down DOMA means the Federal Government recognizes our marriages, gives resident status to our foreign spouses, recognizes the marriages of those from countries where it is already legal, and the close to 1,200 other rights that go along with marriage and so many other positive consequences that would create an avalanche of positive repercussions throughout the country; legal, social, political, within the business community….

    So while of course a full marriage ruling would be the best, the DOMA ruling is an 80+% option and by far the more sure bet on the legality AND the make up of the judges. AND it’s in the shoot. Let DOMA fall and I think the rate that public opinion on marriage equality will double, triple the current rate. To be able to say, regardless of what you bone heads in the Dakotas think, America recognizes my marriage.

    And once the SCOTUS decides the federal government can’t not recognize us, the ruling of full constitutionality will be very difficult to deny. I’d rather a DOMA ruling first and THEN the question of full marriage, than the other way around. What we don’t want is a SCOTUS ruling saying there is no constitutional right, so let each state decide before a great DOMA ruling.

  8. says

    Just to be clear, I agree that at least part of DOMA being found unconstitutional, and soon, would be a huge game changer. And exactly the correct legal strategy in going forward. And, like Disgusted American, my equality state isn’t about to let marriage be taken from its gay couples just because Romney would like it to be so. (He’s on the wrong side of the historical trajectory.)

    My only point was that Andrew’s breezy statement about getting “this whole thing wrapped up by this time next year” either needed clarification (maybe just this case wrapped up?) or a reality check. These cases are purposefully and smartly narrow, and it’s important to recognize that.

    The post itself is good news–while we can’t guarantee the outcome, we still want to get those DOMA cases in front of the Supreme Court.

  9. Kyle says

    “Jamal”…what’s dangerous is sitting idle and being treated as second class citizens. YOU may find the idea cozy, but many of us refuse to be told we pay into many taxes but can’t benefit for it because the government wants to police our relationships.

  10. Icebloo says

    IF the Supreme Court finds in our favor (which I doubt because it’s corrupt and always weighted to the right) the Republicans will start the process of changing the Constitution rather than give in and let us have equal rights. They could put some kind of clause in the Constitution against us and then the anti-gay laws would not be unconstitutional any more.

  11. James says

    The ability to obtain federal benefits is all I am really asking for. I hope this happens irregardless of who is in power, whether it be Romney or Obama. I honestly don’t care who is President if they just leave gay people alone and let them live their lives, instead of trying to obstruct our rights all the time.

  12. RedRoseQueen1 says

    James, the word “irregardless” is not actually the correct word.
    “Regardless” is the right one.A common grammatical error.
    I agree 100% with the fight to repeal DOMA. But if anyone believes that could or would EVER happen under a Romney administration, they have not been paying attention in the least.
    As a married, hetero woman, I still find it inconceivable that in the year 2012, there is even a debate as to whether same-sex couples should be “allowed” the rights clearly given to them constitutionally! It’s a civil rights issue just as surely as segregation and job discrimination.Surely separation of church and state as well as “equal rights for ALL” should be sufficient to guarantee that common sense prevail.Alas,a percentage of the SCOTUS and certain elements in our society will fight this to the bitter end. Ultimately, they will lose.Those who oppose same-sex marriages will one day (sooner rather than later I hope!) find themselves on the wrong side of this issue.Until then, MANY hetero people (such as my husband and myself) are fighting for and supporting the LGBT community in this very important RIGHT! EQUALITY FOR ALL, NOW!