September 12, 2012 | by Chris Johnson
DOJ asks Supreme Court to hear two additional DOMA cases

U.S. Supreme Court (Blade file photo by Michael Key)

The U.S. Justice Department on Tuesday filed legal briefs with the Supreme Court asking justices to take up two additional cases challenging the Defense of Marriage Act upon their return from summer recess.

The Obama administration asked the high court to hear Windsor v. United States, which was filed by the American Civil Liberties Union, and Pedersen v. Office of Personnel Management, which was filed by Gay & Lesbian Advocates & Defenders. Both cases are currently pending before the U.S. Second Circuit Court of Appeals.

News of the Justice Department filing the two separate legal briefs was first reported by Reuters. Read the petition in the Pedersen brief here and the petition in the Windsor brief here.

The Justice Department asks the Supreme Court to take up the cases as sort of a backup plan in case justices decline to hear two other DOMA cases they have been asked to review: the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services and Golinski v. Office of Personnel Management.

“The Court should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski,” the Pedersen petition states. “Should the Court grant review in either of those cases, it need not grant review in this case. If the Court concludes that neither Massachusetts nor Golinski provides an appropriate vehicle for resolving the question presented, it should grant this petition to ensure a timely and definitive ruling on Section 3’s constitutionality.”

The Justice Department maintains the order in which the Supreme Court should consider the cases is Massachusetts and Golinski, then Pedersen, then the Windsor case. According to the Justice Department, the question of whether the Supreme Court can take up the latter two cases rests on whether plaintiffs “have appellate standing to seek certiorari before judgment.” But the Justice Department says justices must resolve the additional question in the Windsor case of whether New York law recognized the Canadian marriage of the plaintiff, New York lesbian Edith Windsor, at the time of her spouse’s death.

Among the petition’s signers are U.S. Solicitor General Donald Verrilli and Acting Assistant Attorney General Stuart Delery, who’s gay and has been litigating against DOMA on behalf of the Obama administration in court.

Both petitions call on the Supreme Court to answer a question that was previously asked by other parties calling on the Supreme Court to review the anti-gay law: Does Section 3 of DOMA violate the Fifth Amendment guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state?

The request from the Justice Department follows earlier requests from the Supreme Court to consider these cases from ACLU and GLAD in the wake of district court rulings in favor of plaintiffs against DOMA in the lawsuits. U.S. District Judge Barbara Jones ruled against DOMA in the Windsor case in June. U.S. District Judge Vanessa Bryant ruled against the anti-gay law in the Pedersen case in July. Following those rulings, ACLU and GLAD both asked the Supreme Court to take their respective cases in lieu of waiting for the U.S. Second Circuit Court of Appeals to make a decision.

The Justice Department had previously called on the Supreme Court to take up the consolidated Massachusetts case and the Golinski case. The filings on Tuesday mean the Justice Department now has matched all other requests from groups calling on the Supreme Court to take up different DOMA cases.

Mary Bonauto, the lead counsel for the GLAD in the DOMA cases, said the filings by the Justice Department are “procedural” because petitions requesting that the Supreme Court take up these cases were already awaiting justices.

“So now, DOJ is simply adding it’s voice, saying, ‘Yes, these cases — if some reason you don’t take up some other case — these cases are also appropriate for deciding the issue of DOMA’s constitutionality,” Bonauto said. “It is really is procedural as opposed to substantive, simply trying to essentially provide a menu of cases to the Supreme Court from which to choose.”

In February 2011, the Obama administration announced it would no longer defend DOMA against legal challenges in court and that laws related to sexual orientation should be subjected to heightened scrutiny. Previously, the Justice Department had only Golinski to draw upon because courts in the Massachusetts case ruled DOMA was unconstitutional using a rational basis standard. But after the court ruling in the Pedersen case, the Justice Department had another vehicle to express its viewpoint that heightened scrutiny should apply to laws related to sexual orientation.

“Essentially, they opened up this sample because they want a case that applies heightened scrutiny because that fits with their position and Pedersen is the only other case,”  Bonauto said. “Pedersen actually does an extremely thorough job of addressing the factors at enormous length. I mean, it’s over 50 pages in the opinion. In the end, the court doesn’t apply heightened scrutiny because it doesn’t need to, but it sets forth a case for heightened scrutiny.”

The ACLU declined to comment on the Justice Department filings.

Now that the Justice Department has sent these petitions, other parties in the cases have until October 12 to respond. The Supreme Court may make its decision on whether to hear the DOMA cases in the week of September 24, but the cases may be held until a later time.

The House Republican-led Bipartisan Legal Advisory Council, under the leadership of Speaker John Boehner (R-Ohio), has taken up defense of DOMA in the administration’s stead. Legal counsel representing BLAG didn’t immediately respond to a request for comment.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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