Ted Olson

Perhaps the most historic U.S. Supreme Court session ever for the LGBT community gets underway officially October 1, with a record eight gay-related cases seeking review, all involving same-sex marriage.

Two of the eight cases include high-profile landmark decisions in federal appeals courts –one declaring the California’s ban on same-sex marriage unconstitutional, the other holding the core section of the Defense of Marriage Act (DOMA) to be unconstitutional. Whether the court refuses to hear the appeals or takes them, the result will set up another landmark in the LGBT civil rights struggle.

Five of the eight cases are direct challenges to DOMA, two concern ballot battles, and the eighth concerns a law in Arizona blocking gay employees of the state from obtaining benefits for their partners.

The DOMA cases

While there are eight cases of specific interest to the LGBT community, there are 11 petitions asking the Supreme Court to review their lower court decision. Of those 11 petitions, eight seek appeal on DOMA-related challenges — three from Massachusetts and the First Circuit, one from California through the Ninth Circuit, and two from New York and two from Connecticut in the Second Circuit.

The Massachusetts Cases – The three petitions from the First Circuit involve two cases that have been winding their way through the courts since March 2009. Gay & Lesbian Advocates & Defenders (GLAD) filed one of the lawsuits, while the Massachusetts Attorney General’s office filed the other. Both sought to strike down the core provision of DOMA –Section 3—that bars the federal government to recognize same-sex spouses for any federal purpose.

GLAD argued the law violates the equal protection rights of citizens with same-sex spouses; the Commonwealth argued that it violates state sovereignty. There is both a petition, by the Bipartisan Legal Advisory Group (BLAG) and the Solicitor General, and a cross-petition (from the Commonwealth) on this latter case. The fourth petition involves another GLAD case, Office of Personnel Management v. Pedersen.

OPM v. Gill and Health and Human Services v. Commonwealth are the preeminent legal challenges to DOMA. Both were carefully thought-out strategies, filed in federal court in Massachusetts, and consolidated on appeal to the First Circuit U.S. Court of Appeals.

Gill was filed by Gay & Lesbian Advocates & Defenders (GLAD),  the legal team which won the landmark 2003 decision for same-sex marriage in Massachusetts. GLAD argued below that DOMA violates the equal protection clause of the federal constitution. Commonwealth, brought by the Massachusetts attorney general’s office, says DOMA violates the spending clause or Tenth Amendment rights of states.

On May 31, the First Circuit, using a “a closer than usual” rational basis review in these cases, ruled Section 3 of DOMA violates the equal protection guarantee. And while it rejected the Commonwealth’s argument regarding the Tenth Amendment and spending clause, the state has asked that the Supreme Court review that aspect of the decision if it takes the cases for review.

Section 3 of DOMA prohibits the federal government from recognizing the marriages of same-sex couples. Although this began as two cases before the First Circuit, it now constitutes three petitions before the Supreme Court: BLAG’s appeal of the Gill ruling, and the appeals of HHS and the Massachusetts Attorney General in the Commonwealth decision.

Golinski v. OPM – Another important DOMA challenge pending before the Supreme Court for this session is Golinski v. OPM, brought by Lambda Legal Defense. It tests DOMA’s ability to deny a gay federal employee the same benefits enjoyed by straight federal employees.

The federal employee in this case is attorney Karen Golinski, who is employed as an attorney by the Ninth Circuit U.S. Court of Appeals and sought health insurance coverage for her same-sex spouse. U.S. District Court Judge Jeffrey White, an appointee of President George W. Bush, said the legislative history of DOMA is “replete with expressed animus toward gay men and lesbians,” but he said he was “persuaded that something short of animus may have motivated DOMA’s passage.” White’s February 2012 ruling said Congress failed to justify its disparate treatment of gays and lesbians, whether one used rational or heightened judicial review. The Ninth Circuit declined to hear BLAG’s appeal, so BLAG took its appeal to the U.S. Supreme Court.

Windsor v. U.S. – Two petitions have been filed in the Windsor case, originated by the ACLU. Unlike the other cases, Windsor has only just been argued to the federal appeals court (September 27) and has not yet received a circuit decision.

Judge Barbara Jones of the U.S. District Court for Southern New York ruled June 6 that DOMA violates the U.S. constitution’s guarantee of equal protection when it requires a same-sex spouse to pay a federal estate tax from which heterosexual spouses are exempt. Because of DOMA, plaintiff Edith Windsor was forced to pay more than $363,000 in estate taxes when her same-sex spouse, Thea Spyer, died in 2009 and left Windsor her estate. Jones used the lowest standard of judicial review—rational basis—in finding DOMA unconstitutional.

Solicitor General Donald Verrilli submitted a brief to the Supreme Court urging it to take the case in part because different lower courts were using different standards of review on the issue.

“This court has previously granted certiorari before judgment when necessary to provide expeditious resolution of exceptionally important legal questions,” said Verrilli. But ultimately, Verrilli urged the court to consider the petition to review Windsor only if it first decides that none of the Massachusetts cases nor Golinski should be reviewed.

Pedersen v. OPM – This is GLAD’s second DOMA challenge, essentially a twin to the Gill case in Massachusetts. This one was filed in federal court in Connecticut, with plaintiffs from several Second Circuit states.

The Supreme Court typically grants review when an appeals court declares a federal law unconstitutional. It also frequently grants review when various appeals courts are in conflict over a law’s constitutionality.

The circuit courts have declared DOMA unconstitutional, but there has been no conflict. A federal district court in the Second Circuit has declared it unconstitutional, but the Second Circuit itself has not yet weighed in.

But the fact that the U.S. House Bipartisan Legal Advisory Group (BLAG) has been aggressively defending DOMA (in 14 separate courts, at latest count) will no doubt weighed heavily on the Supreme Court’s willingness to take up the issue sooner rather than later. A ruling from the high court upholding the law may be the only way to slow the dramatically increasing support for same-sex marriage—in the courts and in public opinion.

Ongoing ballot battles

Brewer v. Diaz – In November 2008, voters in Arizona passed a DOMA-like amendment to the state constitution to prohibit state recognition of same-sex relationships. Governor Jan Brewer then signed into law a bill to officially redefine “spouses” of state employees to include only heterosexual ones. Lambda Legal filed this lawsuit, originally known as Brewer v. Collins, representing a group of gay Arizona state employees against a new state law barring them from signing up their domestic partners and children for family health insurance coverage. A federal judge ruled the state law violated the U.S. Constitution’s guarantee of equal protection. The Ninth Circuit upheld that ruling last year, another victory for Lambda Legal. The state, and Republican Governor Jan Brewer, is petitioning the high court to overturn the ruling.

NOM’s challenge of those laws has failed before the U.S. Supreme Court once already. This is—as the First Circuit put it—“the second chapter of a lawsuit challenging the constitutionality of Maine laws imposing registration and disclosure requirements on entities that finance election-related advocacy.” The First Circuit upheld the state laws. NOM, again, appealed to the high court.

The Prop 8 climax —Hollingsworth v. Perry (formerly known as Brown v. Perry and Schwarzenegger v. Perry) is one of the most anticipated LGBT cases to reach the U.S. Supreme Court, for the LGBT community and for many others. It is a case that has been drenched with drama since the beginning, when the newcomer organization American Foundation for Equal Rights—against the advice of long-time gay legal activists—hired two of the country’s most prominent attorneys to challenge a voter-passed initiative in California to ban same-sex marriage.

As Ted Olson and David Boies staged their three-week long landmark trial in defense of equal rights for same-sex couples, gay legal activists marshaled behind them. And when, in August 2010, they won a comprehensive victory from U.S. District Court Judge Vaughn Walker (a Republican appointee who, after retirement, acknowledged having a same-sex partner), the momentum throughout the country seemed to begin shifting towards equality.

Then, in another victory, the Ninth Circuit U.S. Court of Appeals ruled in February 2012 that Proposition 8 was “remarkably similar” to Colorado’s anti-gay Amendment 2, which the Supreme Court had declared unconstitutional. Based on that, said the Ninth Circuit, Proposition 8 must also be declared unconstitutional—a violation of the equal protection guarantees of the U.S. Constitution.

The Ninth Circuit also quoted from the U.S. Supreme Court’s 2003 decision striking down sodomy laws, Lawrence v. Texas, and its 1967 decision, Loving v. Virginia, striking down bans on interracial marriage.

It was no surprise then, that supporters of Proposition 8, filed an appeal to the U.S. Supreme Court. Olson and Boies have opposed the petition, noting that the Ninth Circuit decision did “not conflict with any decision of this Court or any other court of appeals.” That’s the legal reason. In their brief, they also made clear that they were also motivated by a basic responsibility to their clients –two same-sex couples who want to marry in California.

“While there are circumstances that might make review of this obviously important issue attractive at this time—particularly the possibility of resolving this case in conjunction with the challenges to DOMA—those considerations,” said Olson and Boies, “must be weighed against the substantial and irreparable harm the period of additional review would impose on Plaintiffs and those situated similarly to them.”

The Supreme Court will release its next list of cases on Monday, October 1, at the start of its 2012-13 session.