The Republican-led House Bipartisan Legal Advisory Group today mailed its petition to the U.S. Supreme Court asking it to review the May 31 ruling of the U.S. Court of Appeals for the First Circuit that the federal definition of marriage contained in the Defense of Marriage Act is unconstitutional.
In a filing obtained by Metro Weekly, BLAG asks the Supreme Court, which must agree to consider the case, to take the appeal for three reasons: (1) the constitutionality of DOMA Section 3 is "an issue of great national importance" and raises separation-of-powers questions; (2) the First Circuit decision conflicts with the Supreme Court's 1972 decision in Baker v. Nelson and other appellate decisions; and (3) the First Circuit "invented a new standard of equal protection review."
In the course of the filing, called a petition for a writ of certiorari, BLAG states that "[t]he executive branch has ... abdicated its traditional role of defending the constitutionality of duly-enacted statutes."
BLAG, which voted 3-2 to defend DOMA in court challenges, is made up of House Speaker John Boehner (R-Ohio), Majority Leader Eric Cantor (R-Va.) and Majority Whip Kevin McCarthy (R-Calif.), Minority Leader Nancy Pelosi (D-Calif.) and Minority Whip Steny Hoyer (D-Md.). Pelosi and Hoyer have objected to the filings.
Paul Clement, of Bancroft PLLC, is the counsel of record in the filing. Clement argued on BLAG's behalf in front of the First Circuit's three-judge panel, which held unanimously that DOMA's definition of "marriage" and "spouse" as only including one man and one woman was unconstitutional.
Judge Michael Boudin, appointed to the bench by President George H.W. Bush, wrote for the court: "Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest."
Writing that "Supreme Court review of DOMA is highly likely," the appeals court stayed, or put on hold, the implementation of its decision pending any appeal.
BLAG is asking the Supreme Court to consider two questions: (1) Whether Section 3 of the Defense of Marriage Act violates the equal protection component of the Due Process Clause of the Fifth Amendment; and (2) Whether the court below erred by inventing and applying to Section 3 of the Defense of Marriage Act a previously unknown standard of equal protection review.
BLAG has intervened in several court challenges to DOMA following the Feb. 23, 2011, decision by President Obama and Attorney General Eric Holder not to continue defending Section 3 of the 1996 law after concluding that laws that classify people based on sexual orientation, like DOMA, should be subjected to a "heightened" form of court scrutiny.
As of 5 p.m. today, the filing was not on the Supreme Court's docket, but the House General Counsel's office confirmed to Metro Weekly that the filing had been "deposited" today. Metro Weekly reported earlier this month that BLAG's lawyers told a court in another DOMA case in Connecticut that it would be filing the Supreme Court petition by the end of June.
In a statement, Pelosi criticized the filing, saying, "Democrats have rejected the Republican assault on equal rights, in the courts and in Congress. We believe there is no federal interest in denying LGBT couples the same rights and responsibilities afforded to all couples married under state law. And we are confident that the Supreme Court, if it considers the case, will declare DOMA unconstitutional and relegate it to the dustbin of history once and for all."
Other parties have 30 days from the date the petition is received to file their view of whether the Supreme Court should take the case. The cases, which were decided jointly by the First Circuit, involve a challenge to the law brought by Gay & Lesbian Advocates & Defenders, Gill v. Office of Personnel Management, and a challenge brought by Massachusetts Attorney General Martha Coakley (D), Massachusetts v. Department of Health and Human Services.
The GLAD plaintiffs, Massachusetts, the Department of Justice and other interested individuals and organizations will be able to give their input as to whether the court should take the case. The court then will consider whether it wants to take the case, a question most scholars expect it to answer in the affirmative as the constitutionality of a federal statute is at issue. It could, however, hold the case in order to await a decision on one of the further DOMA challenges.
ALSO: On June 18, Metro Weekly provided an extensive update on the status of several of the challenges to DOMA.
[NOTE: This article was updated and expanded, with the final update at 7:35 p.m.]