On March 26, the Justice Department filed a "Motion to Consolidate and Expedite Appeals" and a "Petition for Initial Hearing En Banc" in Golinski v. Office of Personnel Management & Bipartisan Legal Advisory Group of the U.S. House of Representatives, Appeals No. 12-15388 and 12-15409 now pending before the 9th Circuit Court of Appeals. This is the case in which U.S. District Judge Jeffrey S. White ruled on February 22, 2012 WL 569685 (N.D.Cal.), that Section 3 of the Defense of Marriage Act was unconstitutional as applied to Karen Golinski's request to enroll her wife in the health insurance program provided by Golinski's employer… the 9th Circuit Court of Appeals. (Golinski is a staff attorney with the court.) Now both the Office of Personnel Management, represented by the Justice Department, and the Bipartisan Legal Advisory Group of the House of Representatives (BLAG), represented by former Solicitor General Paul Clement and his law firm, have appealed the ruling.
This is kind of complicated. BLAG immediately appealed the ruling, arguing that the district court erred in failing to apply 9th Circuit precedent specifying that sexual orientation discrimination claims are subject to rational basis review. The DOJ, reflecting the new views announced almost exactly a year prior to the court's decision by Attorney General Eric Holder, had supported Golinski's argument that DOMA Section 3 is unconstitutional, agreeing with Judge White that subsequent developments have undermined the 9th Circuit's prior sexual orientation discrimination rulings. In its Motion to Consolidate, DOJ points out that consolidating the cases ensures appropriate standing for BLAG to present its arguments by making the government, at least technically, an appellant in the case whose "real injury" is that Judge White has issued an injunction against enforcement of DOMA Section 3 in this instance.
On the other hand, and consistent with its position that it is not appealing on the merits, DOJ has apparently given the go-ahead to the Office of Personnel Management (OPM), which oversees the administration of employee benefits for the executive branch and the judiciary, to withdraw its objections to granting Golinski's request.
On March 9, Shirley Patterson, Assistant Director for Federal Employee Insurance Operations, sent a letter to Blue Cross Blue Shield Association in Washington, D.C., which provides the relevant health insurance coverage for 9th Circuit employees, attaching a copy of Judge White's order and withdrawing OPM's prior directive regarding the enrollment of Amy Cunninghis, Ms. Golinski's wife. "Please implement an expeditious enrollment of Ms. Cunninghis," wrote Ms. Patterson, instructing that the coverage be made retroactive to February 22, 2012, the date of Judge White's order.
However, wrote Patterson, her letter "has no effect on enrollments requested by other same-sex spouses." OPM's position now is that it is complying with Judge White's order, but not generally backing away from the Administration's position that it must continue, in general, to enforce DOMA Section 3 until such time as the courts have definitively resolved the issue of its constitutionality.
Early in April the U.S. Court of Appeals for the 1st Circuit in Boston will hear arguments in the consolidated cases of Gill and Commonwealth of Massachusetts, the government's appeal from a 2012 ruling that DOMA Section 3 was unconstitutional. DOJ decided to push the 9th Circuit into moving faster. The 1st Circuit argument will be before a three-judge panel, but DOJ is urging the 9th Circuit to go directly to an eleven-judge en banc panel. The reason? Judge White went out on a limb to hold that he was not bound by the 9th Circuit's "controlling" precedent of High Tech Gays v. Defense Industrial Security Clearance Office (DISCO), 895 F.2d 563 (1990), because subsequent developments had undermined its reasoning. The problem, of course, is that in Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), a 9th Circuit panel had continued to treat High Tech Gays as a controlling precedent, but most of the "subsequent developments" upon which Judge White relied had occurred prior to the Witt ruling.
Let's cut through the red tape, argues DOJ. A three-judge 9th Circuit panel considering the Golinski appeal would necessarily be focused first on whether it was bound by Circuit precedent either to reverse Judge White or to affirm him on his alternative theory that Section 3 also flunks the rational basis test. In the Massachusetts district court's consideration of the 1st Circuit case, Gill, DOJ had argued that Section 3 survives rational basis, but it is now arguing on appeal that "heightened scrutiny" is the appropriate test because sexual orientation meets the critera for suspect classification, and that Section 3 flunks heightened scrutiny, a point as to which DOJ officially changed its position last February. DOJ now urges in its Petition to the 9th Circuit that an en banc panel would not be encumbered by the need to adhere to a prior three-judge panel ruling, and could consider the issue of the appropriate standard of review afresh, taking account of all subsequent developments, including the overruling of Bowers v. Hardwick and the DOJ's new analysis of sexual orientation discrimination.
DOJ also points out that a decade after High Tech Gays, a 9th Circuit panel had departed from another part of the High Tech Gays rationale, by embracing in Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000), the argument that sexual orientation should be treated as an immutable characteristic. The DOJ also noted that in Christian Legal Society v. Martinez, 130 S.Ct. 2971 (2010), the Supreme Court seems to have virtually embraced the same point, by rejecting an attempt to distinguish between conduct and status in the context of anti-gay discrimination by a religious organization.
In addition to seeking a direct route to en banc review, bypassing the usual 3-judge panel, DOJ also argued for an accelerated briefing and hearing schedule. Its rationale is that there are now numerous cases pending within the district courts, including several in the 9th Circuit, presenting challenges to the constitutionality of Section 3 of DOMA, so it would make sense for the 9th Circuit to think through and adopt a definite ruling on the point for the guidance of all these trial courts. (Page 6 of DOJ's Motion to Consolidate and Expedite Appeals lists 11 pending cases, three in the 9th Circuit, and could just as well have added the pending petition for en banc review in the Proposition 8 case, which presents many of the same theoretical issues, albeit in the context of the 14th rather than the 5th Amendment.) DOJ asks for en banc oral argument by September 12, apparently hoping that it might secure a ruling from the court before the fall election. It presses home the point, in light of cases pending in so many district courts, that this is an important recurring constitutional question that needs an answer.
So far BLAG has not responded, but Golinksi, represented by Lambda Legal, endorsed the Justice Department's plea for expedition in handling the appeal. As DOJ points out in its filing, although Ms. Cunninghis will now be covered, she can't know for how long with the appeal pending, so it's in the interest of Ms. Golinski and her wife to have this case concluded as soon as possible.
Meanwhile, the Washington Post reported interesting political gossip about the possibility that the president's political advisors will recommend that he finish "evolving" and come out in support of same-sex marriage before the November election. Since anybody who is interested in the issue believes that his failure to do so thus far is all about politics and not his personal beliefs — citing his pro-same-sex marriage stand when running for state legislative office in Illinois during the 1990s — and since most Republicans and Independents probably already believe that he supports same-sex marriage, the rationale for continued holding back seems thinner and thinner.
BLAG issued its response.
As for Christian Legal Society, the court in past cases had “declined to distinguish between status and conduct in this context”.
The Ninth Circuit in High Tech Gays had also declined to distinguish between status and conduct. “Participation in deviant sexual activities may tend to cast doubt on the individual’s morality, emotional or mental stability and may raise questions as to his or her susceptibility to coercion or blackmail.” 895 F.2d 563 at 568, citing DIS Manual for Personnel Security Investigations (DIS 20-1-M) , para. 4-11, at 4-5, 4-6 (1985) And yet, High Tech Gays treated this as a classification based on homosexuality itself. id. at 571-574. See also id. at 572 (noting that a challenge to the military anti-sodomy law involved an equal protection argument) citing Hatheway v. Secretary of Army,641 F.2d 1376 (9th Cir. 1981)
Other courts have declined this distinction. See National Gay Task Force v. Board of Education, 729 F.2d 1270 at 1273 (10th cir. 1984) (treating a law allowing teachers to be fired for public homosexual activity as a classification on the basis of homosexuality itself), Cook v. Gates, 528 F.3d 42 at 60-62 (1st Cir. 2008) (treating a policy that allows servicemen to be discharged for homosexual conduct to be a classification on the basis of homosexuality itself)
Thus, if Christian Legal Society announced a new doctrine, these cases are not disturbed by it.