Justice Department Asks Supreme Court To Hear Two DOMA Challenges
In a surprising move, the Justice Department has asked the Supreme Court to hear two challenges to DOMA. The Solicitor General has filed petitions for certiorari in both cases. Scottie Thomaston writes at Prop 8 Trial Tracker:
The Golinski case is scheduled for oral argument at the Ninth Circuit the week of September 10, but the Justice Department is asking to bypass the Ninth Circuit hearing and ruling entirely and head directly to the Supreme Court where they can review issues such as the level of scrutiny and past precedents that may conflict with a ruling striking down DOMA. In the Ninth Circuit, a case called High Tech Gays is settled precedent; it held that gays and lesbians are not a protected class and laws impacting gays and lesbians aren’t entitled to heightened review. This can only be overturned by a Ninth Circuit en banc panel – and the Justice Department originally sought initial en banc review in Golinski but was denied – or by the Supreme Court. So putting the issue squarely before the Justices is a significant step. And in fact, in their certiorari petition, the Justice Department tackles the issue of heightened scrutiny for laws affecting gays and lesbians head on.The second DOMA case is Gill v. OPM/Massachusetts v. HHS. The House GOP requested Supreme Court review on that case last Friday.
UPDATE: Lambda Legal sends a press release.
This development 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. Lambda Legal and Morrison & Foerster stand ready to argue for fair treatment for Karen Golinski and her spouse, Amy Cunninghis, in any court, at any time - and we welcome this opportunity to finally put DOMA out of its, and our, misery.