UPDATED July 4: The government petitions on DOMA have been docketed as 12-15 (First Circuit case) and 12-16 (District Court-Northern California case). The House GOP leaders’ petition filed earlier is docketed as 12-13 (First Circuit case). The responses to all three are due August 2, unless extended.)

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Seeking a clear-cut Supreme Court ruling against Congress’s power to ban federal benefits for legally married same-sex couples, the Obama Administration on Tuesday afternoon filed two cases, and urged the Justices to allow the House GOP leaders to defend the law that the government now believes is unconstitutional. One petition, found here, involves a First Circuit Court ruling against the ban included in the Defense of Marriage Act. The second, found here, asked the Court to pull up a case now pending in the Ninth Circuit Court — a case in which a federal District judge in California nullified the ban.

Although the Administration believes, after changing its position last year, that DOMA’s Section 3 is invalid, and thus agrees with the lower court rulings, it contended that it still has the authority to be the one to appeal in order “to ensure that the judiciary is the final arbiter” of the issue. The House’s Republican leaders, who have taken over the defense of DOMA, have already filed their own petition (now docketed as 12-13), but the government lawyers argued that the legislators do not have a legal right to appeal but should be allowed to take part in the case anyway. If the lawmakers are allowed to do so, the new filing said, the Court need not rule on whether they were legally entitled to bring their own appeal.

DOMA is a 1996 law signed by President Bill Clinton and passed with huge majorities in the House and Senate. It has two main provisions, but only one of those is at stake in the new cases. That is the provision that says that, whenever marriage is mentioned in a federal program or gets favored treatment as in the tax code, that means only a legally married man and woman. The other provision attempts to give the states a legal right to refuse to recognize same-sex marriages that are performed in other states. Gay rights advocates also oppose that provision, but it is not being put before the Court.

The constitutional challenge to its marriage definition is not an attempt to establish a federal constitutional right for gays and lesbians to marry. In fact, the couples challenging DOMA are already legally married under their own states’ laws, and are contending that excluding them from equal legal treatment is a form of unconstitutional discrimination. That was the basis for the First Circuit Court’s ruling against Section 3 at the end of May, and by U.S. District Judge Jeffrey White in San Francisco in February.

Judge White’s decision is now under review, on an expedited schedule in the Ninth Circuit, but by filing its petition in the Supreme Court at this stage, the Obama Administration sought to bypass that judicial rung in order to have a fuller review done by the Supreme Court. The filing will have the effect of putting the Ninth Circuit’s review on hold in the meantime.

In urging that the Court put the Ninth Circuit case on a fast track to the Supreme Court, the new petition said that “authoritative resolution of the question is of great importance to the United States,” to the individual federal court employee in the case, and to “tens of thousands of others who are being denied the equal enjoyment of the benefits that federal law makes available to persons who are legally married under state law.”

Because both cases involve decisions that struck down a federal law, the chances are very strong that the Supreme Court will accept at least one of them for review in the next Term, opening October 1. The Court will not consider them during its summer recess, but they could be ready for action by the Justices at their first private Conference, now set for September 24.

One of the key issues that will be before the Court is the constitutional test the Justices would apply to the federal ban. Although the Court has decided a number of major gay rights cases, it has never declared a specific standard — that is, it has not said whether a law need only have a “rational basis,” whether it should have to meet some level of “heightened scrutiny,” or whether it should have to satisfy the toughest test of all: “strict scrutiny.” It has applied a variation of rational basis, without saying that should control in other cases.

In the First Circuit, a somewhat mixed standard was applied, but Judge White applied “heightened scrutiny,” as both of those courts nullified the federal ban. The Justice Department has now embraced the “heightened scrutiny” test and concluded that the ban cannot meet that hurdle. It has said, though, that it will continue to enforce the ban until its constitutionality is finally settled.

The new cases have not yet been assigned docket numbers. Another same-sex marriage case is on its way to the Court, involving the constitutionality of California’s voter-approved “Proposition 8,” banning all same-sex marriages in that state. That cases thus raises a different constitutional issue than DOMA, involving whether a state is free to ban such marriages altogether. That case, as it went through the Ninth Circuit, became considerably narrower than it had been in District Court, but the Circuit Court did nullify the state constitutional amendment approved as a ballot measure.

Recommended Citation: Lyle Denniston, U.S. files DOMA challenges (UPDATED), SCOTUSblog (Jul. 3, 2012, 7:45 PM), https://www.scotusblog.com/2012/07/u-s-doma-challenges-filed/