On Friday, May 20, the Republican members of the House Bipartisan Legal Advisory Group filed a motion to intervene in two cases challenging the constitutionality of Section 3 of the Defense of Marriage Act that are currently on appeal before the U.S. Court of Appeals for the First Circuit.
The cases, Gill v. Office of Personnel Management and Massachusetts v. United States, have been brought by Gay & Lesbian Advocates & Defenders and the state of Massachusetts and are consolidated on appeal. In July 2010, the trial court judge, U.S. District Court Judge Joseph Tauro, agreed with the plaintiffs and struck down Section 3 of DOMA, which sets the federal definition of marriage as being only one man and one woman. Although the Department of Justice initially appealed those decisions, the subsequent Feb. 23 decision by DOJ that Section 3 of DOMA is unconstitutional led DOJ to file a notice to the court in the cases that it would no longer be defending the provision in the Gill or Massachusetts cases.
This, then led to the BLAG's involvement, which is characterized by Friday's filing in more aggressive terms than the BLAG had done in its April 18 filing in another DOMA challenge.
The attorneys for the BLAG, led by former George W. Bush administration solicitor general Paul Clement, write:
On March 9, 2011, in response to the Department's decision to turn its back on its responsibilities, the House formally determined to defend the statute in cases in which DOMA's constitutionality has been challenged.
Compare this to the BLAG's description of the same decision in the April 18 filing in Windsor v. United States, in which Clement wrote:
In response, the Bipartisan Legal Advisory Group of the U.S. House of Representatives ... formally determined on March 9, 2011 to defend the statute in civil actions in which Section III's constitutionality has been challenged.
The Friday BLAG filing seeking intervention in the Gill and Massachusetts cases also goes on to state that "the Department now refuses to defend against" DOMA Section 3 challenges -- a statement that appeared nowhere in the Windsor filing.
Additionally, and unlike the Windsor filing, today's filing contains an explicit defense of the standing of the BLAG to intervene, which the BLAG's attorneys say is unnecessary but that, even if necessary to be shown, the BLAG does have standing to intervene.
One final note: Massachusetts did not consent to the intervention. This is notable and is one potential reason for the more aggressive tone take in the brief. The lawyers from GLAD and the DOJ, as well as Edith Windsor's lawyers in her challenge, all consented to the BLAG's intervention. As such in Windsor, the motion was filed as "unopposed" and contained a proposed order. Although a proposed briefing schedule is included in the BLAG's Friday filing in Gill and Massachusetts, there is no proposed order.
Another potential reason for the more aggressive language is that over the past month BLAG's lead outside counsel, Clement, left the King & Spalding firm and took the BLAG representation to Bancroft PLLC, a smaller firm led by another former George W. Bush administration lawyer, Viet Dinh.
Read the Gill and Massachusetts BLAG motion to intervene: 2011-05-20-blag-motion-to-intervene-in-gill.pdf