What Is Happening at the Supreme Court Tomorrow?

BY ARI EZRA WALDMAN

This term at the Supreme Court will decide what gay rights law will look like for a decade. But, before we get to the substance, we have to deal with some procedure: On Friday, November 30, the justices will meet to decide which of the several cases they will take in order to answer basic questions about the Equal Protection Clause, due process, levels of scrutiny, and the future of marriage. 

As many of you know, the Defense of Marriage Act (DOMA) is up for review after both the First and Second Circuits -- not to mention a California district court and several other courts -- declared it unconstitutional. There is also California's Proposition 8, that state's constitutional ban on the freedom to marry, which the Ninth Circuit declared unconstitutional in a groundbreaking, but narrow decision. Also, Arizona is trying to take away domestic partner benefits while leaving state benefits to married couples in place. Though a lower federal court stopped Governor Jan Brewer from implementing her latest antigay rule, the Supreme Court is being asked to step in and decide the matter.

These cases are different: The DOMA cases challenge the federal definition of marriage and the benefits associated thereof. And, there are several DOMA cases -- Gill, Massachusetts, Windsor, Pedersen, and Golinski; some of these cases put the level of scrutiny of antigay discrimination front and center, while others would not require the Supreme Court to decide the issue. Nor do these cases say anything about the constitutionality of state bans on marriage recognition. That is what the Prop 8 case is about, but it is itself unique, referring to the specific situation in which California granted marriage rights only to take them away months later. The Arizona case concerns a state that not only bans its gays from marrying, but wants to further burden them by denying them -- but not opposite-sex married couples -- the state benefits of marriage.

Collectively, the Court's decisions in these cases will change the legal landscape for gay persons and gay couples. They will decide if we are equal or relegated to second class status. They will change how we think about and argue gay rights cases in the future. They will change what it means to be gay in America. And, in all likelihood, it will change for the better.

AFTER THE JUMP, I discuss what will happen to tomorrow, offer what I think are the most likely outcomes, and suggest what the next steps going forward will be.

Department of Justice Asks Ninth Circuit to Expedite Appeal of Case That Declared DOMA Unconstitutional

The Department of Justice has asked the Ninth Circuit Court of Appeals to expedite an en banc 11-judge appeal of its ruling declaring DOMA unconstitutional in the Karen Golinski case.

The SF Chronicle reports:

Lawyers hired by House Republican leaders, who have defended the law since President Obama switched sides a year ago, have appealed White's ruling to a three-judge panel of the Ninth Circuit.

But Obama's Justice Department asked the full appeals court Monday to bypass the customary three judges and convene an 11-judge panel.

That procedure would not only expedite the case - the larger panel is the last step before Supreme Court review - but also enable the court to set a stricter standard for laws that deny equal treatment. The panel could overturn the circuit's 1990 ruling allowing such laws to be upheld if they have any rational justification.

Adoption of a more demanding standard, like those used to scrutinize laws based on race or sex, would increase the likelihood of future rulings declaring a right to same-sex marriage. California's Proposition 8, which banned such marriages in 2008, was struck down by a Ninth Circuit panel in a 2-1 ruling last month, but sponsors of the initiative are seeking review from an 11-judge panel.

Chris Geidner has more on the request at MetroWeekly.

Previously...
Federal Court Rules DOMA Unconstitutional [tlrd]

Federal Court Rules DOMA Unconstitutional

A major ruling from U.S. District Court Judge Jeffrey White, a Bush appointee, who has ruled the Defense of Marriage Act (DOMA) unconstitutional for violating the Constitution's guarantee of equality.

Our legal expert Ari Ezra Waldman will have analysis coming up this evening. UPDATE: Read Ari's analysis HERE.

Politico's Josh Gerstein:

U.S. District Court Judge Jeffrey White, who sits in San Francisco and was appointed to the bench by President George W. Bush, issued the ruling Wednesday afternoon in a case involving federal judicial law clerk Karen Golinski's request for benefits for her female spouse. White said the stated goals of DOMA, passed in 1996 and signed by President Bill Clinton, could not pass muster under a so-called "heightened scrutiny" test or even a lower "rational basis" threshhold.

"The imposition of subjective moral beliefs of a majority upon a minority cannot provide a justification for the legislation. The obligation of the Court is 'to define the liberty of all, not to mandate our own moral code,'" White wrote. "Tradition alone, however, cannot form an adequate justification for a law....The 'ancient lineage” of a classification does not render it legitimate....Instead, the government must have an interest separate and apart from the fact of tradition itself."

Check out the ruling here.

Reuters' Dan Levine adds:

White, who was appointed by President George W. Bush, a Republican, issued a permanent injunction preventing the government from further interfering with Golinski's ability to enroll her wife in the insurance program.

Chris Geidner at MetroWeekly pulls out some key pieces:

The Court has found that DOMA unconstitutionally discriminates against same-sex married couples. Even though animus is clearly present in its legislative history, the Court, having examined that history, the arguments made in its support, and the effects of the law, is persuaded that something short of animus may have motivated DOMA’s passage:

Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 374-75 (2001) (Kennedy, J., concurring).

Lambda Legal Staff Attorney Tara Borelli tweets: "This ruling spells doom for #DOMA."

Adds Borelli, in a press release:

"The Court recognized the clear fact that a law that denies one class of individuals the rights and benefits available to all others because of their sexual orientation violates the constitutional guarantee of equality embodied in the Fifth Amendment. The Court agreed with us that sexual orientation discrimination by the government should receive heightened scrutiny under the constitution.  It then concluded that DOMA could not meet that standard, and that there was not even a rational justification to deny Karen Golinski the same spousal health care benefits that her heterosexual co-workers receive."

And here's some extra background on the case from Lambda Legal:

Judge White's ruling is the latest victory in a battle that began in 2008, when Golinski, a 20-year employee of the U.S. Ninth Circuit Court of Appeals, sought to enroll her wife, Amy Cunninghis, in the employee health plan.  It is the first DOMA-related ruling since U.S. Attorney General Eric Holder announced that the Department of Justice had determined DOMA was unconstitutional and would no longer defend it, and the majority leadership of the U.S. House of Representatives hired outside counsel to defend the discriminatory statute.  A similar ruling holding DOMA unconstitutional in a separate case is on appeal in the 1st Circuit.

Golinski's struggle to enroll her spouse in the family health plan, a benefit routinely granted to her married heterosexual co-workers, travelled a torturous path, including two separate orders by Ninth Circuit Chief Judge Alex Kozinski directing that Golinski be allowed to enroll Cunninghis in the health plan, orders ignored by the U.S. Office of Personnel Management (OPM), citing DOMA.  In April 2011, Lambda Legal and Morrison & Foerster filed an amended complaint directly challenging the constitutionality of DOMA.  Judge White heard arguments on this amended complaint on December 16.

Said Golinski: "I am profoundly grateful for the thought and consideration that Judge White gave to my case. His decision acknowledges that DOMA violates the Constitution and that my marriage to Amy is equal to those marriages of my heterosexual colleagues.  This decision is a huge step toward equality."

Our legal expert Ari Ezra Waldman will have analysis coming up this evening. UPDATE: Read Ari's analysis HERE.

Challenge To DOMA In San Francisco

Yesterday, a top lawyer with the Department of Justice appeared in San Francisco to argue against the constitutionality of DOMA.

He appeared on behalf of Karen Golinski, the federal employee whose routine request to add her wife to her health insurance policy has resulted in a clash between the retained homophobes of the legislative branch and the Obama administration's DOJ, which asserts that DOMA's odious, marriage-defining third section is unconstitutional and shouldn't be enforced. From the Metro Weekly:

Pitting the House Republican leadership-controlled Bipartisan Legal Advisory Group (BLAG) against Golinski and the Obama administration, [yesteday's] hearing presented the question to U.S. District Court Judge Jeffrey S. White whether Golinski's challenge should be dismissed and, if not, whether she should be granted a decision in her favor without a trial.

Assistant Attorney General Tony West, the head of the civil division of DOJ, appeared in court to argue DOJ's position. Lambda Legal's Tara Borelli and Morrison & Foerster's Rita Lin represented Golinski. For BLAG, former George W. Bush administration Solicitor General Paul Clement did not attend the hearing but rather sent Bancroft PLLC's Conor Dugan, another lawyer who had served in the George W. Bush administration DOJ, to handle the arguments.

Speaking to Metro Weekly after the hearing, Borelli said, "Judge White thanked the DOJ for having sent the head of the civil division" to argue the case himself, adding that it made "a statement of the significance that DOJ and the administration place on this question."

During the hearing, Judge White seemed "skeptical" of BLAG's arguments, Metro Weekly reports:

In White's questions, he not only appeared skeptical of BLAG's arguments but also appeared at least curious about BLAG's view of its constitutional basis to be there at all. In one question, he asked, "What is the statutory authority for and evidence of compliance with the role that the Bipartisan Legal Advisory Group has assumed in this matter? Is this group actually bipartisan? Does BLAG have the support – and funding for the increasing cost of defending DOMA – from a majority of Congress or just from the House of Representatives?"

White went on to cite an earlier Supreme Court case about congressional representation in the courts, INS v. Chadha, in which he wrote that the court held that "Congress is the proper party to defend the validity of a statute when an agency of government charged with enforcing the statute agrees that the statute is unconstitutional."

The Golinski case represents the first time BLAG's lawyers have argued for the constitutionality of DOMA in the open air of a courtroom, with all the scrutiny that implies.

DOJ Files Expansive Brief Supporting Lesbian's Health Benefit Lawsuit

The Department of Justice appears to be stepping up its work against the Defense of Marriage Act.

After months of taking vague stands against the 15-year old law's unconstitutionality, the DOJ offered a more robust and forceful objection in a brief filed yesterday supporting federal court employee Karen Golinski's lawsuit asking for equal health benefits for her wife.

Golinski's case had previously been dismissed, although a judge left the door open for more arguments on the matter.

The DOJ filing is significant for two reasons: one, the Obama administration previously opposed her lawsuit; and, two, it goes further than any other brief in explaining how the federal government has consistently discriminated against LGBT citizens.

This could change everything.

Read more, AFTER THE JUMP...

Judge Dismisses Golinski DOMA Lawsuit on Procedure, But Leaves Door Open for More Direct Challenge

U.S. District Judge Jeffrey White has dismissed a lawsuit challenging DOMA brought by Karen Golinski, a U.S. appeals court lawyer in San Francisco, who was challenging the law in order to obtain benefits for her wife. White also denied a request for an injunction.

Reuters reports:

Ninth U.S. Circuit Court of Appeals Chief Judge Alex Kozinski, acting as a court administrator, ordered Golinski's insurance carrier to provide the benefits.

However, the Office of Personnel Management instructed the insurance carrier not to comply. Golinski sued the personnel office to enforce the order.

In response, administration attorneys did not argue the constitutionality of the law. Rather, they said Kozinski's order was not enforceable through the kind of lawsuit Golinski filed.

White agreed on Wednesday, but wrote that he would address the constitutionality of the law to "unfairly" restrict benefits if it were placed before him. The judge gave Golinski's lawyers a chance to file an amended lawsuit.

Golinski's lawyer says new documents will be filed by April 15.