Lawyers for the House Republican leadership today told a federal court that the House Bipartisan Legal Advisory Group plans to ask the Supreme Court to overturn a federal appeals court ruling from May 31 striking down part of the Defense of Marriage Act.
Although the Supreme Court request had been expected, it was unclear when such a request, called a petition for a writ of certiorari, would be made since the deadline for the filing is not until Aug. 29.
The news came today in another challenge to DOMA's federal definition of "marriage" and "spouse" contained in Section of the 1996 law. That case, Pedersen v. Office of Personnel Management, was brought by Gay & Lesbian Advocates & Defenders, and BLAG's counsel today asked the court to put that case on hold.
One of the reasons for doing so, BLAG's lawyers said, is because a Supreme Court decision on the constitutionality of Section 3 of DOMA would answer the questions raised in the Pedersen challenge.
That potential Supreme Court case, BLAG details, is Massachusetts v. U.S. Department of Health and Human Services, the appellate case decided by the U.S. Court of Appeals for the First Circuit decision on May 31.
Referring to that decision, BLAG's lawyers wrote today in the Pedersen filing:
The House now is preparing a petition for certiorari in the Massachusetts case, a petition which it intends to file by the end of this month. Massachusetts is a good candidate for Supreme Court review, as the First Circuit itself recognized: "Supreme Court review of DOMA is highly likely." If the Supreme Court grants certiorari in Massachusetts, which we think is likely, the Court likely will docket the case for briefing, argument and decision during the October 2012 Term.
Most legal experts have suggested that timeline in discussions about the Massachusetts case, which was brought by Massachusetts Attorney General Martha Coakley, and was heard and decided alongside another case, Gill v. Office of Personnel Management, which was brought by GLAD. That timeline would result in a decision likely by no later than this month in 2013.
Of course, the Supreme Court first would have to decide to take the case.
After BLAG files its petition, other parties have 30 days to file their view. 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.
BLAG is defending DOMA in court challenges because President Obama and Attorney General Eric Holder announced a decision in February 2011 that Section 3 of DOMA is unconstitutional and, therefore, stopped defending it in court challenges.
BLAG appointed outside counsel, former U.S. Solicitor General Paul Clement, to defend the law. Since that appointment, the three-judge panel of the First Circuit and three federal trial-court judges have struck down the law as unconstitutional despite his defense of it.
A spokesman for House Speaker John Boehner (R-Ohio) referred questions about the litigation strategy to their attorneys.