Following hard on the petitions filed by the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) and the Solicitor General to get the Supreme Court to take up the question whether Section 3 of the Defense of Marriage Act (DOMA) violates the Constitution in other cases, the ACLU LGBT Rights Project has filed a petition asking the Court to take Edith Windsor's case as well. Windsor, whose same-sex spouse died in 2009, sued for a refund of the estate tax of more than $360,000 that had to be paid because the Internal Revenue Service would not recognize their marriage as valid. The petition was filed today, July 16, 2012.
On June 6, U.S. District Judge Barbara S. Jones ruled in Windsor's case that Section 3 of DOMA violates the equal protection requirement of the 5th Amendment. BLAG, defending Section 3, immediately filed for review in the U.S. Court of Appeals for the 2nd Circuit, and the Justice Department, defending the government, promptly sought review as well. Windsor's attorneys filed a petition asking the 2nd Circuit to expedite the appeal in light of her age and ill health, resulting in a short briefing schedule with oral argument expected to be held the week of September 24.
But events have moved quickly on the DOMA front. In the past few weeks, BLAG and the Solicitor General filed petitions in the Supreme Court seeking review of Massachusetts v. U.S. Department of HHS, in which the 1st Circuit Court of Appeals held Section 3 unconstitutional. In addition, the Solicitor General petitioned the Court to grant review in Golinski v. Office of Personnel Management, in which a trial court in San Francisco held Section 3 unconstitutional and an appeal is pending before the 9th Circuit Court of Appeals. By mid-July, it was apparent that the issue of Section 3's constitutionality will be before the Court during its October 2012 Term, as the Court generally grants petitions filed by the Solicitor General seeking review of cases where lower courts have declared federal statutes unconstitutional.
Thus, it was time for the ACLU to get into the game as well. (GLAD, the Boston-based New England LGBT public interest firm, represents the plaintiffs in the 1st Circuit case. Lambda Legal, the national LGBT public interest firm, represents Karen Golinski.) The ACLU represents Windsor, with cooperating attorneys from Paul Weiss Rifkin Wharton & Garrison LLP and the NYCLU. Enlisting the assistance of the Supreme Court Litigation Clinic at Stanford Law School, they filed a Petition arguing that the Court should take Windsor's case as well.
In addition to the points argued in the other petitions about the importance of achieving a nationwide ruling on whether Section 3 is constitutional, Windsor's petition presses the additional point that, in light of her age and ill health, she needs expedited review. Her victory in the district court will not result in any relief until all appeals are exhausted, and having to go to the 2nd Circuit does not make sense when the ultimate legal issue in the case will be before the Supreme Court. As the Petition notes, Ms. Windsor, not her estate, should get the relief she is seeking.
The Petition also points out that lower federal courts have varied in their doctrinal approaches to evaluating Section 3, and the Windsor ruling differs from the other two cases being presented to the Court for review. The 1st Circuit ruling said that Section 3 would survive ordinary rational basis review, and struck it down by applying some form of more demanding review, citing the federalism concerns raised by the state of Massachusetts in its lawsuit that was consolidated with GLAD's case. The district court in Golinski said that sexual orientation claims merit heightened judicial scrutiny, staking out a position in advance of the 9th Circuit Court of Appeals, which has been relying on a twenty-year old precedent that seems outdated by subsequent Supreme Court rulings (Romer v. Evans and Lawrence v. Texas). The 2nd Circuit hasn't taken a position yet on the level of judicial scrutiny appropriate for sexual orientation discrimination claims, but Judge Jones determined that in the absence of circuit precedent she should apply rational basis review, with the "more searching" scrutiny that Justice O'Connor described in her concurring opinion in Lawrence v. Texas.
The ACLU points out that the Court could, theoretically at least, affirm Judge Jones without having to decide whether sexual orientation discrimination claims should be subjected to a higher level of scrutiny, evading this question as it did in Romer v. Evans when it struck down Colorado Amendment 2.
Whether the Court will be enticed by that consideration is uncertain, but the arguments for granting at least one of the Petitions now pending are very strong – not least that BLAG feels obliged to intervene in every case challenging Section 3, and cases are proliferating. (A class action was just filed in federal court in Los Angeles, for example, on behalf of a binational same-sex married couple challenging the application of Section 3 in immigration law, and similar cases are pending in Chicago and Brooklyn. Cases are also pending challenging the exclusion of same-sex military spouses from the usual benefits accorded military spouses.) As long as the Obama Administration takes the position that they are obliged to enforce Section 3 until it is definitively ruled unconstitutional, more and more of these cases will arise. The question needs to be answered on a national basis, and it's time for the Supreme Court to act. Granting all the pending Petitions would be efficient, relieving the 9th and 2nd Circuits of having to invest judicial resources in deciding a question that will no doubt be before the Court in the 1st Circuit case during its term that begins this October.