The past few weeks have seen a flurry of new developments in the courts concerning DOMA and marriage equality cases. The proponents of Prop 8 - in Perry, the challenge to the California constitutional amendment - petitioned the Supreme Court to review the case. Section 3 of DOMA was struck down yet again, this time by Judge Vanessa Bryant, an appointee of President George W. Bush, in Pedersen v. Office of Personnel Management. And the Bipartisan Legal Advisory Group (BLAG), who is defending Section 3 of DOMA on behalf of House Republicans after the Justice Department decided to drop their defense, has lost a few requests for stays of proceedings in some DOMA cases. The sheer number of these cases can cause a lot of confusion and headaches; I'm told that even people who are solely focused on following DOMA cases are resorting to the use of spreadsheets to keep track of everything. So here is a series that is intended to be a rundown of where these cases stand after the latest developments. (Also, see jpmassar's excellent post from a few months ago; mine is just a follow-up to his post.)
This part will consist of cases that are currently before the Supreme Court. Since at this point only DOMA challenges and the Prop 8 challenge are before the Court, this post will focus primarily on DOMA. Future posts will be geared toward updates in the district and appeals courts, and those will include both DOMA and marriage equality cases.
A note regarding the cases that are currently before the Supreme Court: the Court is not in session until October. There will be a conference (to look at petitions for certiorari and vote on whether to review cases or not) on September 24 and another the following week. During a conference, either in late September or early October, the Court will decide whether to hear challenges to Section 3 of DOMA, and which cases it will review. Instead of writing this at the end of all the case updates on this post, I'll leave it up here as a note; so just assume that the Supreme Court will decide whether and which cases to hear on these dates.
Gill v. Office of Personnel Management/Massachusetts v. Department of Health and Human Services
The Gill and Massachusetts cases were decided separately by the same district court judge, Nixon appointee Joseph Tauro, and then consolidated on appeal. Gill was filed by Gay and Lesbian Advocates and Defenders (GLAD) and Massachusetts was filed by Massachusetts Attorney General Martha Coakley. In both cases, Judge Tauro struck down Section 3 of DOMA. (GLAD said it violated the equal protection principles in the Fifth Amendment and Massachusetts said it violated the Tenth Amendment and the Spending Clause. Judge Tauro agreed.) At the First Circuit, on appeal, GLAD, the Justice Department and the Massachusetts AG's office opposed the law; Paul Clement argued in favor of upholding the law, for BLAG. Notably, the oral argument at the First Circuit was the first time the Justice Department suggested that they were not going to defend Section 3 of DOMA "on any basis." Before, as per Attorney General Eric Holder's letter explaining the Government's decision to stop defending Section 3, the Government had agreed that Section 3 would pass the most lenient form of judicial scrutiny, rational basis. They had explained they favor application of a heightened form of judicial scrutiny, however, and Section 3 of DOMA easily fails that test. At the First Circuit, the Justice Department would not defend the law, even if it were scrutinized using the rational basis test.
The three-judge panel at the First Circuit, consisting of two Republican-appointed judges and one Democratic-appointed judge, unanimously struck down Section 3 of DOMA as unconstitutional. Their decision applied a form of rational basis review that looks closely at laws that could be perceived to have been enacted with "animus" against a particular group, and they considered federalism concerns important in their review of the law as well.
On June 29, BLAG petitioned the Supreme Court for certiorari, asking them to review the First Circuit's opinion.