Gay Marriage Shaping Up To Be Supreme Court Blockbuster of Coming Term
Jul 17, 2012
By Kristen Friend, staff writer – July 17, 2012.
As the Supreme Court wrapped up its high-profile 2011-2012 term, the pundits and politicians dominating the 24-hour news cycle could speak of little else but the political ramifications of its decision to uphold the Affordable Care Act. However, just weeks after the high-profile ruling, lines are already being drawn over what could be the Court’s next big constitutional battle. Both Congress and the Department of Justice have asked the Supreme Court to weigh in on the issue of same-sex marriage, a topic it has not yet addressed directly.
The controversy centers on the constitutionality of section 3 of the Defense of Marriage Act, or DOMA. A handful of federal courts have already struck down section 3 of DOMA as unconstitutional.  Section 3 defines marriage as the legal union between one man and one woman for the purpose of any federal law, program or administrative function. 
DOMA was passed with a substantial bipartisan majority and signed into law by President Bill Clinton in 1996. President Clinton has since reversed his stance on the law and indicated he believes gay and lesbian individuals should have the right to marry and enjoy federal protections. 
Activity in district and federal courts concerning DOMA has become almost commonplace. The group Gay & Lesbian Advocates & Defenders (GLAD) lists 17 current challenges to the law on its website.  And last Thursday a California couple filed a new suit, challenging DOMA on the basis that it denies them the immigration rights afforded to heterosexual couples. 
Both supporters and opponents of gay marriage rights believe public opinion is trending in their favor. Nationally, supporters appear to be right. Greg Lewis, a professor of public management at Georgia State University who has been studying public opinion about gay marriage and gay rights for roughly 20 years, estimates that support for gay marriage has increased by 16 points since 2004.  In May, Gallup released a poll showing support for same-sex marriage winning 50 to 48 percent. In 1996, when DOMA was passed, Gallup polling showed opposition to gay marriage at 68 percent.  
At the federal level, policy is slowly beginning to reflect this trend. Last year, the Justice Department announced that it would no longer defend DOMA in federal court because the administration believed the law to be unconstitutional. Also in 2011, President Obama officially ended the military’s “don’t ask, don’t tell” policy, allowing gays to serve openly.
In May, the president’s position finally evolved to one of open support for gay marriage rights. His announcement, however, came just days after the passage of Amendment One in North Carolina, officially placing a gay marriage ban in that state’s constitution. Support for gay marriage may be trending positive nationally, but opponents continue to win at the state level. To date, 31 states have adopted constitutional amendments banning gay marriage. 
The many challenges to the discriminatory practices that result from DOMA’s application have finally built to a perfect storm that the Supreme Court may no longer be able to escape. A string of rulings in late May and early June, coupled with actions from the Department of Justice and Congress, have created a path for two DOMA cases as well as Perry v. Brown, the case involving California’s Proposition 8, to finally reach the Supreme Court.
The Massachusetts cases are Gill v. OPM and Massachusetts v. United States Department of Health and Human Services. Gill was filed by GLAD in 2009 on behalf of eight couples in Massachusetts. The suit claims the couples have been illegally denied protections, including benefits for the children of federal workers, federal tax deductions, survivor benefits and Social Security benefits, among others. It alleges that section 3 of DOMA violates the equal protection under the law citizens are granted through the Fifth Amendment. 
Also in 2009, Massachusetts Attorney General Martha Coakley filed the suit Massachusetts v. US DHHS. In this case, the state of Massachusetts claims that section 3 is unconstitutional because it is an overreach of federal authority into a state’s ability to recognize marriages. The suit also claims that section 3 codifies “an animus” toward gay and lesbian individuals into law, a practice the Supreme Court has in the past deemed unconstitutional. 
In July of 2010, Judge Tauro of the U.S. District Court in Boston issued a summary judgment, finding section 3 of DOMA unconstitutional in both cases. In Gill, he agreed that section 3 violates the equal protection clause of the Fifth Amendment, and in Massachusetts, he held that section 3 also violates the Tenth Amendment. Additionally, he found that the authority to limit protections and benefits lies outside of Congress’ power under the Spending Clause of the U.S. Constitution. 
On May 31, the First Circuit Court of Appeals agreed, striking down section 3 as an unconstitutional violation of the principle of equal protection and an intrusion into a state’s right to define marriage. 
The Department of Justice has asked the Supreme Court to hear Gill v. OPM (which has been consolidated with Massachusetts). They have also asked the Court to fast track Golinski v. OPM, a California case that was decided in February at the district level but has not yet been heard by the Ninth Circuit. In Golinski, U.S. District Judge Jeffrey White held that failure to provide health benefits to the wife of a federal worker unconstitutionally violates her right to equal protection. 
Why the administration picked Golinski in particular for fast tracking is a matter of some speculation. It is possible that the Justice Department recognized the Supreme Court’s penchant for overturning the rulings of the notably progressive Ninth Circuit, which will almost certainly agree with the district judge. Getting the case before the Supreme Court in advance of the Ninth Circuit’s ruling could help its chances of survival.
The Bipartisan Legal Advisory Group (BLAG), acting on behalf of Congress, has also asked the Supreme Court to take the Massachusetts cases. The Bipartisan Legal Advisory Group is a standing group in the House with the authority to direct the actions of the House Office of General Counsel.  In light of the increasing number cases involving section 3 of DOMA and the administration’s unwillingness to defend the law, House Speaker John Boehner convened the BLAG in 2011 to grant permission for the House attorneys to step in and defend DOMA in the DOJ’s stead.
Although the group’s name includes the term bipartisan, it is in reality representing the will of the Republican leadership in the House. BLAG consists of three members of the House majority (the Speaker, majority leader and majority whip) and two members of the minority (the minority leader and minority whip). Unsurprisingly, BLAG authorized congressional intervention by a vote of 3-2. 
BLAG has unsuccessfully defended DOMA in four cases to date, and has intervened in several more, spending over $700,000 in taxpayer money in the process. 
Last week over 130 House Democrats filed a friend of the court brief in support of the administration’s position on Golinski. According to House Democratic Leader Nancy Pelosi, “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.” 
The Republican leadership has proven to be less enthusiastic about discussing gay marriage. Shortly after President Obama announced his change of position, Speaker Boehner commented, “The president and the Democrats can talk about all this all they want, but the fact is the American people are focused on our economy and they’re asking the question: Where are the jobs?” 
Supporters of marriage equality are speculating that if the Supreme Court takes up the issue of gay marriage, it would be to their advantage for the DOMA cases to be heard first. This is because the DOMA and Proposition 8 suits differ significantly. Gill and Golinski seek only to strike down a federal law, allowing couples that have been married in a state that allows gay marriage to have their marriages recognized by the federal government. Striking down DOMA would confer a set of rights upon married gay couples which they do not currently have. However, the DOMA challenges do not address the constitutionality of gay marriage itself; they only address the rights people receive once they have been married legally by a state.
Perry, however, does challenge the constitutionality of gay marriage bans themselves. While the Ninth Circuit court has limited the application of its ruling to California, the case still asks the Court to take up an extremely controversial issue. And the Supreme Court does not generally like to create waves. Striking down DOMA is a less uncomfortable subject than the idea of marriage equality in general. It is easier to argue against the unfairness of specific penalties than it is to argue for the broader concept of gay marriage rights in general.
There is also room for a conservative-liberal agreement on DOMA that may not exist in Perry. Conservative members of the Court, to the extent that they can stay true to their legal philosophy without interference from personal bias, should support the federalism argument. If one believes in state’s rights, the overreach of DOMA seems apparent. The United States has a long history of allowing states to govern marriage laws. The more liberal members of the Court are likely to agree with the anti-discrimination and equal protection arguments. This leaves room for a 5-4 or even 6-3 split in favor of overturning DOMA’s section 3.
If the Supreme Court decides to hear any of the cases, it may do so as early as the September 24 conference. Arguments would not likely be held until spring, with a potential decision in the summer of 2013.