The New England-based LGBT group behind successful litigation against the Defense of Marriage Act is asking the U.S. Supreme Court to hear yet another case in which a district court ruled against the anti-gay law.
Gay & Lesbian Advocates & Defenders is asking the Supreme Court to take up the case of Pedersen et al v. Office of Personnel Management after U.S. District Judge Vanessa Bryant of Connecticut last month ruled against Section 3 of DOMA as a result of the litigation. The organization had earlier called on the high court to take up its case of Gill v. Office of Personnel Management, which led the U.S. First Circuit Court of Appeals to overturn DOMA.
The question presented to the Supreme Court is the same question presented in other case: Does Section 3 of the Defense of Marriage Act violate the equal protection guarantee of the Fifth Amendment to the U.S. Constitution as applied to legally married same-sex couples?
The 33-page petition also lays out similar arguments why the Supreme Court should take up DOMA and strike it down as unconstitutional. Among them are the case raises questions of national importance that are ripe for review and the case presents an opportunity for the Supreme Court to rule that laws related to sexual orientation should be subjected to heightened scrutiny — a position held by the Obama administration.
But GLAD also argues that Pedersen case should be taken up by the Supreme Court because the six married couples and a widower who are plaintiffs in the lawsuit demonstrate the many ways in which same-sex couples are affected by DOMA, such as the federal income tax, Social Security, federal employee and retiree benefits, the Family & Medical Leave Act and the Employment Retirement Income Security Act.
“DOMA is not a narrow statute that discriminates against gay men and lesbians in discrete contexts, but rather a broad- based enactment whose effects pervade the entire U.S. Code,” the petitions states. “Because they have been disadvantaged in so many different ways, the Petitioners in this case best represent the range of DOMA’s effects on married gay men and lesbians.”
The petition means the Supreme Court has been asked to hear a total four cases within the course of a couple months challenging DOMA. Others lawsuits in which both opponents and proponents of DOMA have called on justices to consider the anti-gay law are Windsor v. United States and Golinski v. Office of Personnel Management, which have led district courts to overturn DOMA, and the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Health & Health Services.
The Pedersen case has seen activity at the circuit court level, where it currently sits. The U.S. Justice Department, which has stopped defending DOMA and has assisted in efforts to litigate against it, has appealed the case to the U.S. Second Circuit Court of Appeals even though the House Republican-led Bipartisan Legal Advisory Group, which has taken up defense of the DOMA, hasn’t yet taken action following the district court decision.
The Supreme Court won’t be able to decide whether it will hear the Pedersen case or other DOMA cases until it returns from summer recess. Most observers expect the justices to take up consideration of the statute banning federal recognition of same-sex marriage.