The American Civil Liberties Union has struck out in a different direction from the Obama Administration on a key question of legal strategy in the fight for federal recognition for gay and lesbian couples.
In a filing at the Supreme Court today, the ACLU asked the Court to hear the New York case of a woman who was forced to pay massive estate taxes after her wife’s death. The case, in which the ACLU represented the plaintiff, Edith Windsor, was decided on different grounds than the other cases in which federal judges have struck down the Defense of Marriage Act, which limits federal recognition to marriages between one man and one woman.
The ACLU’s move marks a major step in the ongoing question of whether, how and when the Supreme Court might take the high-stakes case. The ACLU’s writ of certiorari is the fourth such petition filed in the past three weeks. The ACLU’s move also brings to the foreground a legal question the Administration has sought to avoid: Whether DOMA should be struck down as unconstitutional even if not subjected to the same “heightened scrutiny” that applies to cases involving race and sex.
In today’s filing, the ACLU argues that the case presents “a question of exceptional national importance,” stating, “DOMA has been held unconstitutional by federal courts in three circuits. The Government has declined to defend its constitutionality, but continues to enforce the statute pending resolution by this Court. Thus, individuals like [Windsor] continue to suffer serious consequences from the Government’s failure to recognize their lawfully solemnized marriages.”
Even as Barack Obama and Mitt Romney have generally avoided the once-charged issues around marriage on the campaign trail, actors on all sides are urging the Court to rule on the DOMA question this term.
The House Republican leadership-controlled Bipartisan Legal Advisory Group and the Department of Justice already have weighed in asking the court to take two other cases challenging the constitutionality of DOMA. The House GOP leadership has been defending DOMA’s constitutionality since the Obama Administration stopped defending the law’s federal marriage definition in February of 2011.
Today, Windsor’s lawyers are telling the Supreme Court that her case is the one the court should take. As the Obama Administration did earlier this month in another DOMA challenge, the ACLU is asking the Supreme Court to take the unusual step of hearing the case before a federal appeals court rules on it.
Windsor – who married her wife, Thea Spyer, in Canada – paid an estate bill of $350,000 after Spyer died in 2009. Windsor sued in late 2010 to be repaid the taxes, which would not have been levied had their marriage been recognized by the federal government. Section 3 of DOMA, however, prohibits the federal government from recognizing a marriage between two women or two men, so the taxes were assessed and paid.
Joined by a high-powered law firm – the lead lawyer for the ACLU’s case is Roberta Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison – and one of the leading liberal law professors in the country, Stanford Law School’s Pam Karlan, the ACLU is pressing the argument that Windsor’s challenge “presents an excellent vehicle” for deciding DOMA’s constitutionality.
The main reason for this, the ACLU’s legal team argues, is that the GOP leaders “acknowledged that [Windsor] ‘has submitted documents that, if accurate, establish … the estate would not have been liable for federal estate tax, if Spyer had been married to a surviving male U.S. citizen at the time of her death.’” In other words, the Republican filing acknowledged that, without DOMA, Windsor wouldn’t have owed taxes and there would have been no case.
A federal trial-court judge, Judge Barbara Jones, ruled in June in Windsor’s case that Section 3 is unconstitutional, a decision that has been appealed to the U.S. Court of Appeals for the Second Circuit – a step the ACLU is seeking to bypass with today’s Supreme Court filing.
A week before the ruling in Windsor’s case, the First Circuit Court of Appeals in Boston held that DOMA was unconstitutional in another pair of challenges to the law, brought by Gay & Lesbian Advocates & Defenders and Massachusetts Attorney General Martha Coakley (D), and involving several couples challenging the law. And a California judge struck down the law earlier this year in a case brought by an employee of the federal courts, Karen Golinski, who was denied spousal health insurance benefits for her wife. Golinski’s case, brought by Lambda Legal, is now on appeal before the Ninth Circuit Court of Appeals.
Neither the Second Circuit nor the Ninth Circuit have ruled – or even heard arguments – on the cases, but the Obama administration asked the Supreme Court on July 3 to take Golinski’s case, arguing to the court that “Certiorari before judgment is warranted under the exceptional circumstances of this case to ensure that this Court has an adequate vehicle to resolve the question of Section 3’s constitutionality in a timely and definitive manner.”
The Republican-controlled Bipartisan Legal Advisory Group, for its part, first asked the Supreme Court on June 29 to hear the appeal of the Massachusetts case; the Department of Justice recommended on July 3 that the court take either that case or the Golinski case; the ACLU filed today’s request in the Windsor case.
Although all of the courts struck down DOMA as unconstitutional, they did so in different ways – distinctions that could make one case or another more appealing to the Supreme Court and could make the Supreme Court appeal more or less complicated for Department of Justice.
The key distinction is the level of scrutiny the courts decided to apply to examine DOMA’s constitutionality. Under the Supreme Court’s prior rulings, laws that classify people are subjected to either rational basis, intermediate or strict scrutiny under the Constitution’s equal protection provisions. The Supreme Court has not specifically answered what level of scrutiny applies to laws, like DOMA, whose classifications are based on sexual orientation.
In the Golinski case, the trial court held that a form of heightened scrutiny applies to sexual orientation classifications. Accordingly, Judge Jeffrey S. White noted that “the proponents of the statute must establish, at a minimum, that the classification is ‘substantially related to an important governmental objective.’” Under heightened scrutiny, which the Obama administration argues should apply to sexual orientation classifications, White found DOMA’s marriage definition to be unconstitutional.
In the First Circuit challenges out of Massachusetts, the court found that the lower, rational basis standard applied – but that DOMA should be given “a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.” The GOP-led BLAG, in asking the Supreme Court to review this decision, argued that the First Circuit “invent[ed] a previously unknown standard of equal protection review.”
Finally, the trial-court decision in Windsor’s case was based on traditional rational basis review, and the ACLU argues today that another reason to take the Windsor case is because the Supreme Court “could affirm the decision below without reaching the question of whether a more stringent standard of review should apply when the Government discriminates on the basis of sexual orientation.”
Although BLAG has argued that DOMA is constitutional no matter the level of scrutiny sexual orientation classifications get, the Administration’s arguments since February 2011 have been less absolute. Rather than arguing, as advocates for couples denied benefits under the law have done, that DOMA is unconstitutional regardless of the level of scrutiny applied, the Department of Justice has argued in its court filings that DOMA is unconstitutional if a form of heightened scrutiny is applied but that the arguments made by the administration to defend DOMA in court prior to February 2011 would continue to form a “reasonable argument” for upholding DOMA under rational basis scrutiny.
This question got more complicated at the oral arguments in the First Circuit, when Acting Assistant Attorney General Stuart Delery, representing the Department of Justice and the Obama administration, told the three-judge panel hearing the appeal, “The direction from the president and the Attorney General has been that the department will cease defending Section 3 of DOMA on any basis. So, I am not here to defend it under any standard.” Pushed by one judge as to whether the Department of Justice had a position on what would happen under rational basis, Delery said, “We don’t your honor, we don’t.”
With the ACLU’s filing, the Windsor case — because the trial court decided the case under rational basis analysis — puts the Obama administration’s view on whether DOMA should be found constitutional under that basis front and center.
After other parties and interested individual and organizations give their views on whether the Supreme Court should consider DOMA’s constitutionality, which are due in the Massachusetts and Golinski cases by Aug. 2, the Supreme Court will decide whether it will hear none, one or multiple DOMA cases. Because of the First Circuit’s decision striking down the law, it is likely the court will take at least one of them. If that happens, a final decision from the court almost certainly would come by June 2013.
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