SPECIAL ISSUE: Same-Sex Marriage: Federal and State--DOMA and Proposition 8 Move Closer to the Supreme Court

The First Circuit recognized that its decision was a prelude to review by the Supreme Court. Even as it struck down Section 3 of DOMA as unconstitutional, the court stayed its mandate, “anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely ' .” 682 F.3d at 17. Early in its opinion, the court also noted that the case before it was difficult, coupling as it does “issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.” 682 F.3d at 7-8. The court also noted its struggle to interpret High Court precedent, acknowledging that “only the Supreme Court can finally decide this unique case.” Id. at 8. Counsel for the so-called Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), appointed by House Republican leadership to defend DOMA, echoed the words of the court, expressing confidence that Supreme Court review is “highly likely.” Julie Bolcer, House Republicans Will Ask Supreme Court to Hear DOMA Case, www.advocate.com/politics/marriage-equality/2012/06/21/house-republicans-will-ask-supreme-court-hear-doma-case (June 21, 2012).

Petitioning for Certiorari: The Arguments Seeking Review

The filing of a petition for certiorari by DOMA supporters was inevitable in the wake of the First Circuit's ruling. Under the Supreme Court's rules, a petition had to be filed within 90 days of the May 31 entry of judgment, but BLAG filed it on June 29 ' two months early ' arguing three reasons that the High Court should review the case:

1) The constitutionality of DOMA's Section 3 is an issue of national importance; 2) The First Circuit's decision conflicts with Supreme Court precedent ' Baker v. Nelson, 409 U.S. 810 (1972) ' and decisions of other U.S. Courts of Appeals; and 3) The First Circuit “invent[ed] a previously unknown standard of equal protection review ' .”

Petition for a Writ of Certiorari at 17, 22, 28-29 (footnote omitted), BLAG v. Gill, No. 12-13 (U.S. June 29, 2012), available at www.metroweekly.com/poliglot/2012/06/breaking-house-gop-leaders-ask-supreme-court-to-re.html (“BLAG Pet.”).

Four days after the filing of BLAG's petition, the U.S. Department of Justice (DOJ) ' which agrees with the First Circuit's holding that DOMA's Section 3 is unconstitutional ' took the unusual step of filing a petition of its own seeking Supreme Court review of the Court of Appeals' decision. In its petition, DOJ urges review by the High Court on three grounds: 1) Review is necessary because the Court of Appeals invalidated an Act of Congress; 2) The decision of the First Circuit raises important questions of federal law that need to be settled by the Supreme Court; and 3) Resolution of the question presented ' whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection ' is a matter of great public importance.

Petition for a Writ of Certiorari at 13, 14, 22, Dep't of Health & Human Servs. v. Massachusetts, No. 12-15 (U.S. July 3, 2012), available at www.scribd.com/doc/99041307/Gill-DOJ-Cert-Petition (“DOJ Pet.”).

Petitions for certiorari filed in two other cases involving DOMA have raised similar arguments ' including an argument that the circuit courts are in “disarray” over the proper standard of scrutiny to be applied to the statute ' bolstering the chances that the Justices will agree to take up the issue of whether DOMA's restrictive definition of marriage under federal law is constitutional. See Petition for a Writ of Certiorari Before Judgment, Office of Personnel Mgmt. v. Golinski, No. 12-16 (U.S. July 3, 2012), available at www.metroweekly.com/poliglot/Golinski-DOJ-cert.pdf; Petition for Writ of Certiorari Before Judgment, Windsor v. United States, No. 12-63 (U.S. July 16, 2012), available at www.prop8trialtracker.com/2012/07/16/breaking-edie-windsor-petitions-supreme-court-to-hear-her-doma-challenge/.

The Principal Question for Getting DOMA Before the Justices

Although BLAG's petition for certiorari in the First Circuit DOMA case cites three reasons in support of the writ, the principal argument ' and the one that is at the core of all the arguments in the petition ' is that the Court of Appeals improperly “invented” a hitherto unknown standard of review to justify striking down the statute. The first sentence of the petitioner's first argument, ostensibly about the national importance of the issue in the case, underscores this point: “The First Circuit struck down Section 3 of DOMA employing novel reasoning to conclude that it violates equal protection.” BLAG Pet. at 17. It is clear that the standard of review utilized by the Court of Appeals is also at the heart of the petitioner's second argument, i.e., that the First Circuit's decision conflicts with the Supreme Court's precedent in Baker v. Nelson, when BLAG argues that “[t]he First Circuit was able to evade the clear implications of Baker for this case only by creating an entirely novel form of equal protection review ' .” Id. at 24.

Even the DOJ, in its petition, challenges the propriety of the “closer than usual” standard of review used by the First Circuit. While ostensibly appealing to the High Court's role as arbiter of what is constitutional, DOJ spends much of its petition urging that a heightened scrutiny standard is necessary in a review of DOMA. See DOJ Pet. at 14-22. Noting that the First Circuit declined to adopt the heightened scrutiny standard urged by the Government in the courts below ' instead using a “closer than usual” rational basis review (Id. at 21-22) ' DOJ concludes that “the proper approach for reviewing the constitutionality of Section 3 is a matter that only [the Supreme] Court can resolve.” Id. at 22.

So it is BLAG's third argument for certiorari that merits our attention, the argument that the First Circuit invalidated DOMA “by inventing a previously unknown standard of equal protection review.” BLAG Pet. at 28-29 (footnote omitted). Indeed, it is an argument that is likely to succeed in getting the attention of the Supreme Court, if for no other reason than the First Circuit itself virtually invites review by the high Court to ensure that the Court of Appeals “got it right” when it read and analyzed Supreme Court precedent to permit a “closer than usual” level of statutory scrutiny.

The Genesis of DOMA

In 1996, long before any state legalized same-sex marriage, Congress passed DOMA, ostensibly in defense of the institution of heterosexual marriage. In its report justifying and supporting the legislation that became DOMA, the House of Representatives noted the importance of understanding what it called the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers.” H.R. Rep. No. 104-664, pt. 1, at 2-3 (1996). The immediate impetus for the statute was a decision by the Hawaii Supreme Court, in Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), that many believed would lead to that state becoming the first to legalize same-sex marriage. Though that did not happen ' to this day, same-sex marriage is not legal in Hawaii ' DOMA was enacted into law. Section 2 of the Act, codified at 28 U.S.C. ' 1738C, absolves states from having to recognize same-sex marriages solemnized in another state. DOMA's Section 3 provides that:

[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. ' 7. It is the latter provision ' restricting the definition of marriage to the legal union between a man and a woman for purposes of federal law ' that was at issue before the First Circuit this year and which the court struck down because it deprives same-sex spouses of the rights and advantages given to heterosexual married couples under U.S. law.

'Closer than Usual'

In its ruling, the First Circuit declared that the private, same-sex-couple plaintiffs before it could not prevail on their equal protection claims under a traditional rational basis standard of review of DOMA. Id. at 9. At the same time, the court also declined to create “some new category of 'heightened scrutiny' for DOMA under a prescribed algorithm ' .” Id. at 8. Rather, the court ruled, its review required “a closer than usual review based in part on discrepant impact [of the statute] among married couples and in part on the importance of state interests in regulating marriage.” Id. (emphasis added).

At the outset of its analysis, the First Circuit pointed out that Section 3's restrictive definition of marriage does nothing to prohibit individual states from passing laws allowing same-sex marriage and “does not formally invalidate same-sex marriages in states that permit them ' .” Id. at 6. But the court also pointed out that, by defining marriage only as a heterosexual relationship for purposes of federal law, Section 3 does “affect[] a thousand or more generic cross-references to marriage in myriad federal laws[, which] [i]n most cases ' operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage.” Id.

As noted by the court, for instance, DOMA “prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C.
' 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. ' 402(f), (i)[, and] leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.” Id.

The court also noted the potentially adverse consequences of DOMA for states that choose to legalize same-sex marriage, including the loss of federal funding for Medicaid where a state ' like Massachusetts, which permits same-sex marriage ' combines the income of same-sex spouses, making it noncompliant with DOMA's definition of marriage. Id. at 7.

In its equal protection analysis, the First Circuit primarily looked to three cases decided by the Supreme Court to synthesize a rule that should govern the case before it and, at the same time, predict how the High Court would look at the statute on review. The cases are U.S. Dep't of Agric. v. Moreno, 413 U.S. 528 (1973) (invalidating Congress's decision to exclude from food stamp program households containing unrelated individuals); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (overturning local ordinance as applied to denial of special permit for operating group home for mentally disabled); and Romer v. Evans, 517 U.S. 620 (1996) (striking down provision in Colorado's Constitution prohibiting regulation to protect homosexuals from discrimination).

The First Circuit noted that, in those three cases, the High Court “did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment [resulting from], the burden imposed [by], and the infirmities of the justifications offered [for]” the legislation at issue. 682 F.3d at 10. The Court of Appeals pointed out that in all three cases ' Moreno, City of Cleburne and Romer ' the High Court “stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute.” Id. at 11. “As with the women, the poor and the mentally impaired,” the First Circuit continued, “gays and lesbians have long been the subject of discrimination. ' The [Supreme] Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review.” Id. (citing Lawrence v. Texas, 539 U.S. 558, 571 (2003)).

The Court of Appeals determined that DOMA could not withstand that kind of “more careful assessment” of the statute, citing the burdens placed on same-sex couples by DOMA:

[T]he combined effect of DOMA's
restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. [And] [f]or those married same-sex couples of which one partner is in federal service, the other cannot take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.

682 F.3d at 11. The First Circuit concluded that those burdens are comparable to the burdens found to be substantial in the three Supreme Court cases where the legislation involved did not pass constitutional muster.

But the Court of Appeals' equal protection analysis was not the end of its inquiry. The court then examined DOMA in light of the plaintiffs' federalism-based challenges to the statute, pointing out that the Supreme Court has “scrutinized with special care federal statutes intruding on matters customarily within state control” in United States v. Morrison, 529 U.S. 598 (2000), and United States v. Lopez, 514 U.S. 549 (1995). The First Circuit noted that:

[t]he lack of adequate and persuasive findings led the [High] Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases [and that] [t]he Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes.

682 F.3d at 13 (citations omitted).

The First Circuit examined the lack of formal findings by Congress leading to the passage of DOMA as well as the ostensible rationales justifying the statute, viz.: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.” Id. at 14 (quoting H.R. Rep. No. 104'664, at 12). The court concluded that:

the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

682 F.3d at 15. Referring to Supreme Court precedents calling for “closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern” the First Circuit noted that, while many Americans believe that marriage is the union of a man and a woman and live in states where that is the law, “[o]ne virtue of federalism is that it permits ' diversity of governance based on local choice ' .” Id. at 16. And that, the court concluded, “applies as well to the states that have chosen to legalize same-sex marriage.” Id. Accordingly, the First Circuit ruled that Congress's denial of federal benefits to same-sex couples lawfully married in Massachusetts, as reflected in Section 3 of DOMA, is not adequately supported by any permissible federal interest.

So heavily ' and self-consciously ' has the First Circuit relied upon its own reading of various Supreme Court precedents in its decision to apply “closer than usual” scrutiny to DOMA that prognosticators across the political landscape predict that the High Court will grant certiorari in the case. The Court of Appeals itself noted that “a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).” Id. at 15-16. Few doubt that the Supreme Court will let the First Circuit (and the rest of us) know whether the three-judge panel, in striking down DOMA's Section 3, misread or misanalyzed governing precedent of the High Court.

The Ninth Circuit Denies an En Banc Hearing on Its Decision

When it denied a petition for rehearing en banc on June 5 in Perry v. Brown, the Ninth Circuit let stand an earlier decision, by a split three-judge panel of the court, that Proposition 8 is unconstitutional. It was reported early on that law professors and others shared the view that the narrowness of the ruling, tailored to California law, could mean that the Supreme Court will decline to hear the case. Professor Jane Schachter of Stanford Law School, for instance, stated that the narrow ruling made it less likely that the Supreme Court would hear the case, focusing as it does on the effect of Proposition 8 eliminating a right, the right to marry, previously granted to same-sex couples under the California Constitution. On the other hand, conceding that the question of whether the High Court would take up the case was “guesswork,” the same professor opined that “the Supreme Court 'may decide to take [the case]'” because of its high-profile nature and because California is an influential state that tends to set trends.

The Decision Striking Down Proposition 8

In a lengthy opinion handed down on Feb. 7, 2012, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the Ninth Circuit considered whether Proposition 8, which sought to eliminate the right of same-sex couples to marry under the California Constitution, violated the U.S. Constitution's Fourteenth Amendment. Id. at 1063. The court concluded that it does, declaring that, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Id. And, the court ruled, “[t]he Constitution simply does not allow for 'laws of this sort.'” Id. at 1063-64 (quoting Romer v. Evans, 517 U.S. 620, 633 (1996)).

The right of same-sex couples to marry under the California Constitution was made clear by that state's Supreme Court in In re Marriage Cases, 183 P.3d 384, 429 (Cal. 2008). It was in the Marriage Cases decision that California's highest court held that “the fundamental right to marry provided by the California Constitution could not be denied to same-sex couples ' .” Perry, 671 F.3d at 1066 (citing Marriage Cases, 183 P.3d at 433-34). The Ninth Circuit held that “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of 'marriage,' which the state constitution had previously guaranteed them ' .” 671 F.3d at 1076.

In striking down Proposition 8, the Ninth Circuit relied heavily on the Supreme Court's decision in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the High Court had struck down an amendment to Colorado's Constitution, which prohibited the
state and its political subdivisions from providing any protection aga-inst discrimination on the basis of sexual orientation. The Supreme Court held that the amendment violated the Equal Protection clause because “[i]t is not within our constitutional tradition to enact laws of this sort [that] singl[e] out a certain class of citizens for disfavored legal status [and which] raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 633-34.

The Ninth Circuit held that, under the reasoning of Romer, Proposition 8 is unconstitutional:

By using their [ballot] initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. ' [T]he People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.

Perry, 671 F.3d at 1096.

The Denial of Rehearing En Banc

Supporters of Proposition 8 almost immediately filed a petition for rehearing en banc, seeking to have the Ninth Circuit overrule the original 2-1 panel decision. Appellants' Petition for Rehearing En Banc, Perry v. Brown, 2012 WL 541541 (9th Cir. Feb. 21, 2012) (Nos. 10-16696, 11-16577). On June 5, nearly four months after the original decision on the merits, the court denied the petition in a tersely worded order. 681 F.3d at 1066. The court did, however, stay its mandate for 90 days pending the filing of a petition for certiorari in the Supreme Court. Id. at 1066-67 (further extending the stay through disposition by the High Court if certiorari is granted).

But the court's order denying the petition for rehearing was not issued alone. Instead, it was accompanied by a sharply worded three-judge dissent that in turn generated a concurrence by the two judges who formed the majority in the panel decision striking down Proposition 8. The dissent, referring to President Obama's expressed wish for a respectful conversation about the issue of same-sex marriage, accused the majority of “silenc[ing] any such respectful conversation” by denying a rehearing en banc. Id. at 1067 (O'Scannlain, J., dissenting). The dissent went further, stating that

[b]ased on a two-judge majority's gross misapplication of Romer v. Evans ' , we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia ' . Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California's democratic process without at least discussing this unparalleled decision as an en banc court.

Id. (O'Scannlain, J., dissenting) (citations omitted) (emphasis in original).

Judge Stephen Roy Reinhardt and Senior Judge Michael Daly Hawkins, the majority in the court's February decision on the merits, were moved to add a concurrence in response to the stinging dissent:

We are puzzled by our dissenting colleagues' unusual reliance on the President's views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

Id. (Reinhardt and Hawkins, JJ., concurring).

Petitioning for Certiorari

Supporters of Proposition 8 filed a petition for certiorari just eight weeks after the Ninth Circuit denied them a rehearing en banc. Petition for a Writ of Certiorari, Hollingsworth v. Perry, No. 12-144 (U.S. July 31, 2012) (Hollingsworth Pet.). The petition sets forth five main arguments seeking to overturn the panel decision that had declared Proposition 8 unconstitutional: 1) The question presented by the case is “exceedingly important.” In this argument, petitioners hope to overcome any argument that the Ninth Circuit's ruling is narrow ' limited to California law ' and not appropriate for review by the Supreme Court. See Hollingsworth Pet. at 13-15; 2) The Ninth Circuit's decision conflicts with Crawford v. Board of Educ., 458 U.S. 527 (1982). Seeking to overcome the Ninth Circuit's analysis that Proposition 8 is unconstitutional on the ground that it stripped away a right previously granted to same-sex couples, petitioners argue “the fundamental lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place.” Hollingsworth Pet. at 17; 3) The Ninth Circuit's decision misapplies Romer v. Evans, 517 U.S. 620 (1996). Similar to their argument regarding Crawford, petitioners argue that the Court of Appeals incorrectly applied Romer to support the conclusion that California could not eliminate a right previously granted to same-sex couples. Hollingsworth Pet. at 17-22; 4) The Ninth Circuit's decision conflicts with Baker v. Nelson, 409 U.S. 810 (1972). Petitioners cite Baker, in which the Court dismissed an appeal from Minnesota's highest court, for want of a federal question, on the issue of whether a State's refusal to recognize same-sex relationships as marriages is unconstitutional. They argue that “[t]he Ninth Circuit's decision ' conflicts with binding precedent of this Court [in Baker] holding that the traditional definition of marriage does not violate the Fourteenth Amendment.” Hollingsworth Pet. at 23; 5) The Ninth Circuit's holding that Proposition 8 serves no legitimate governmental purpose conflicts with precedent. In this longest argument of the petition, same-sex marriage opponents take issue with the Ninth Circuit's conclusion that none of the ostensible justifications for Proposition 8 serves a legitimate purpose. Petitioners argue that: (i) the traditional definition of marriage serves a vital societal interest in “responsible procreation and child-rearing”; (ii) Proposition 8 serves California's legitimate interest in “proceeding cautiously” when reconsidering a redefinition of marriage; and (iii) the purpose of Proposition 8 is not to dishonor gays and lesbians. See Id. at 23-39.

Conclusion

It remains to be seen whether the Supreme Court will agree with the view that the Ninth Circuit's decision striking down Proposition 8 was a “narrow” one ' narrow enough, that is, to avoid review ' or whether it will agree with supporters of Proposition 8 that the decision has ramifications beyond California that merit review. It is true that the decision avoided a ruling on the broader issue of whether a state may ban same-sex marriage. But it is also true that the Ninth Circuit declared Proposition 8 violative of the Fourteenth Amendment to the United States Constitution. And the Supreme Court is the ultimate arbiter of what is or is not violative under the federal Constitution. As a result, it may well be that ' as many expect will be true with respect to the First Circuit's decision invalidating DOMA ' the Supreme Court will weigh in on Perry and determine whether Proposition 8 passes constitutional muster.

Frank Gulino, a member of this newsletter's Board of Editors, is a long-time appellate practitioner in New York City, and is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

Within a matter of days in late spring, U.S. Courts of Appeals on opposite sides of the country rendered decisions that have set the stage for the same-sex marriage issue to reach the Supreme Court. On May 31, the First Circuit struck down Section 3 of the Defense of Marriage Act (DOMA), which defines marriage as the “legal union of one man and one woman” for purposes of federal law. Commonwealth of Massachusetts v. United States Dep't of Health & Human Servs. , 682 F.3d 1 (1st Cir. 2012). In declaring DOMA's Section 3 unconstitutional, the Court of Appeals used an unconventional standard of review, what the court called a “closer than usual” application of the rational basis test, concluding that the statute “fails that test.” Id. at 8, 15. Five days later, the Ninth Circuit denied a petition for rehearing en banc in the case challenging the constitutionality of Proposition 8, the 2008 ballot initiative that sought to amend California's Constitution to define marriage as the union of a man and a woman. Perry v. Brown , 671 F.3d 1052 (9th Cir.), rehearing en banc denied , 681 F.3d 1065 (9th Cir. 2012). By denying the petition for rehearing, the Ninth Circuit let stand an earlier decision by a three-judge panel that had struck down Proposition 8 as violative of the Fourteenth Amendment's guarantee of equal protection by seeking to strip away from same-sex couples a right ' the right to marry ' that previously had been granted to them. See 671 F.3d at 1063. Both circuit court decisions left opponents of marriage equality with one avenue of recourse: filing a petition for certiorari in the U.S. Supreme Court.

In the DOMA case, two parties already have filed cert petitions, months before the deadline. An early petition has been filed in the Proposition 8 case as well. Based not only upon the issues at stake, but also upon the analysis of those issues by the circuit courts, there is good reason to believe that the High Court will agree to hear at least one, if not both, of the cases in its October 2012 Term. This article focuses first on the principal argument made in the petitions for certiorari in the DOMA case, namely that the First Circuit improperly utilized a “closer than usual” standard of review ' what one petitioner calls an “invented” standard ' in striking down DOMA's definition of marriage. We also discuss the Ninth Circuit's decision striking down Proposition 8 in Perry, the court's denial of rehearing en banc, and the arguments made in the petition for certiorari filed in that case.

Review of DOMA by the Justices Is 'Highly Likely'

The First Circuit recognized that its decision was a prelude to review by the Supreme Court. Even as it struck down Section 3 of DOMA as unconstitutional, the court stayed its mandate, “anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely ' .” 682 F.3d at 17. Early in its opinion, the court also noted that the case before it was difficult, coupling as it does “issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.” 682 F.3d at 7-8. The court also noted its struggle to interpret High Court precedent, acknowledging that “only the Supreme Court can finally decide this unique case.” Id. at 8. Counsel for the so-called Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), appointed by House Republican leadership to defend DOMA, echoed the words of the court, expressing confidence that Supreme Court review is “highly likely.” Julie Bolcer, House Republicans Will Ask Supreme Court to Hear DOMA Case, www.advocate.com/politics/marriage-equality/2012/06/21/house-republicans-will-ask-supreme-court-hear-doma-case (June 21, 2012).

Petitioning for Certiorari: The Arguments Seeking Review

The filing of a petition for certiorari by DOMA supporters was inevitable in the wake of the First Circuit's ruling. Under the Supreme Court's rules, a petition had to be filed within 90 days of the May 31 entry of judgment, but BLAG filed it on June 29 ' two months early ' arguing three reasons that the High Court should review the case:

1) The constitutionality of DOMA's Section 3 is an issue of national importance; 2) The First Circuit's decision conflicts with Supreme Court precedent ' Baker v. Nelson , 409 U.S. 810 (1972) ' and decisions of other U.S. Courts of Appeals; and 3) The First Circuit “invent[ed] a previously unknown standard of equal protection review ' .”

Petition for a Writ of Certiorari at 17, 22, 28-29 (footnote omitted), BLAG v. Gill, No. 12-13 (U.S. June 29, 2012), available at www.metroweekly.com/poliglot/2012/06/breaking-house-gop-leaders-ask-supreme-court-to-re.html (“BLAG Pet.”).

Four days after the filing of BLAG's petition, the U.S. Department of Justice (DOJ) ' which agrees with the First Circuit's holding that DOMA's Section 3 is unconstitutional ' took the unusual step of filing a petition of its own seeking Supreme Court review of the Court of Appeals' decision. In its petition, DOJ urges review by the High Court on three grounds: 1) Review is necessary because the Court of Appeals invalidated an Act of Congress; 2) The decision of the First Circuit raises important questions of federal law that need to be settled by the Supreme Court; and 3) Resolution of the question presented ' whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection ' is a matter of great public importance.

Petition for a Writ of Certiorari at 13, 14, 22, Dep't of Health & Human Servs. v. Massachusetts, No. 12-15 (U.S. July 3, 2012), available at www.scribd.com/doc/99041307/Gill-DOJ-Cert-Petition (“DOJ Pet.”).

Petitions for certiorari filed in two other cases involving DOMA have raised similar arguments ' including an argument that the circuit courts are in “disarray” over the proper standard of scrutiny to be applied to the statute ' bolstering the chances that the Justices will agree to take up the issue of whether DOMA's restrictive definition of marriage under federal law is constitutional. See Petition for a Writ of Certiorari Before Judgment, Office of Personnel Mgmt. v. Golinski, No. 12-16 (U.S. July 3, 2012), available at www.metroweekly.com/poliglot/Golinski-DOJ-cert.pdf; Petition for Writ of Certiorari Before Judgment, Windsor v. United States, No. 12-63 (U.S. July 16, 2012), available at www.prop8trialtracker.com/2012/07/16/breaking-edie-windsor-petitions-supreme-court-to-hear-her-doma-challenge/.

The Principal Question for Getting DOMA Before the Justices

Although BLAG's petition for certiorari in the First Circuit DOMA case cites three reasons in support of the writ, the principal argument ' and the one that is at the core of all the arguments in the petition ' is that the Court of Appeals improperly “invented” a hitherto unknown standard of review to justify striking down the statute. The first sentence of the petitioner's first argument, ostensibly about the national importance of the issue in the case, underscores this point: “The First Circuit struck down Section 3 of DOMA employing novel reasoning to conclude that it violates equal protection.” BLAG Pet. at 17. It is clear that the standard of review utilized by the Court of Appeals is also at the heart of the petitioner's second argument, i.e., that the First Circuit's decision conflicts with the Supreme Court's precedent in Baker v. Nelson, when BLAG argues that “[t]he First Circuit was able to evade the clear implications of Baker for this case only by creating an entirely novel form of equal protection review ' .” Id. at 24.

Even the DOJ, in its petition, challenges the propriety of the “closer than usual” standard of review used by the First Circuit. While ostensibly appealing to the High Court's role as arbiter of what is constitutional, DOJ spends much of its petition urging that a heightened scrutiny standard is necessary in a review of DOMA. See DOJ Pet. at 14-22. Noting that the First Circuit declined to adopt the heightened scrutiny standard urged by the Government in the courts below ' instead using a “closer than usual” rational basis review (Id. at 21-22) ' DOJ concludes that “the proper approach for reviewing the constitutionality of Section 3 is a matter that only [the Supreme] Court can resolve.” Id. at 22.

So it is BLAG's third argument for certiorari that merits our attention, the argument that the First Circuit invalidated DOMA “by inventing a previously unknown standard of equal protection review.” BLAG Pet. at 28-29 (footnote omitted). Indeed, it is an argument that is likely to succeed in getting the attention of the Supreme Court, if for no other reason than the First Circuit itself virtually invites review by the high Court to ensure that the Court of Appeals “got it right” when it read and analyzed Supreme Court precedent to permit a “closer than usual” level of statutory scrutiny.

The Genesis of DOMA

In 1996, long before any state legalized same-sex marriage, Congress passed DOMA, ostensibly in defense of the institution of heterosexual marriage. In its report justifying and supporting the legislation that became DOMA, the House of Representatives noted the importance of understanding what it called the “orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers.” H.R. Rep. No. 104-664, pt. 1, at 2-3 (1996). The immediate impetus for the statute was a decision by the Hawaii Supreme Court, in Baehr v. Lewin , 852 P.2d 44 (Haw. 1993), that many believed would lead to that state becoming the first to legalize same-sex marriage. Though that did not happen ' to this day, same-sex marriage is not legal in Hawaii ' DOMA was enacted into law. Section 2 of the Act, codified at 28 U.S.C. ' 1738C, absolves states from having to recognize same-sex marriages solemnized in another state. DOMA's Section 3 provides that:

[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. ' 7. It is the latter provision ' restricting the definition of marriage to the legal union between a man and a woman for purposes of federal law ' that was at issue before the First Circuit this year and which the court struck down because it deprives same-sex spouses of the rights and advantages given to heterosexual married couples under U.S. law.

'Closer than Usual'

In its ruling, the First Circuit declared that the private, same-sex-couple plaintiffs before it could not prevail on their equal protection claims under a traditional rational basis standard of review of DOMA. Id. at 9. At the same time, the court also declined to create “some new category of 'heightened scrutiny' for DOMA under a prescribed algorithm ' .” Id. at 8. Rather, the court ruled, its review required “a closer than usual review based in part on discrepant impact [of the statute] among married couples and in part on the importance of state interests in regulating marriage.” Id. (emphasis added).

At the outset of its analysis, the First Circuit pointed out that Section 3's restrictive definition of marriage does nothing to prohibit individual states from passing laws allowing same-sex marriage and “does not formally invalidate same-sex marriages in states that permit them ' .” Id. at 6. But the court also pointed out that, by defining marriage only as a heterosexual relationship for purposes of federal law, Section 3 does “affect[] a thousand or more generic cross-references to marriage in myriad federal laws[, which] [i]n most cases ' operate to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage.” Id.

As noted by the court, for instance, DOMA “prevents same-sex married couples from filing joint federal tax returns, which can lessen tax burdens, see 26 U.S.C.
' 1(a)-(c), and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, e.g., 42 U.S.C. ' 402(f), (i)[, and] leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.” Id.

The court also noted the potentially adverse consequences of DOMA for states that choose to legalize same-sex marriage, including the loss of federal funding for Medicaid where a state ' like Massachusetts, which permits same-sex marriage ' combines the income of same-sex spouses, making it noncompliant with DOMA's definition of marriage. Id. at 7.

In its equal protection analysis, the First Circuit primarily looked to three cases decided by the Supreme Court to synthesize a rule that should govern the case before it and, at the same time, predict how the High Court would look at the statute on review. The cases are U.S. Dep't of Agric. v. Moreno , 413 U.S. 528 (1973) (invalidating Congress's decision to exclude from food stamp program households containing unrelated individuals); City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432 (1985) (overturning local ordinance as applied to denial of special permit for operating group home for mentally disabled); and Romer v. Evans , 517 U.S. 620 (1996) (striking down provision in Colorado's Constitution prohibiting regulation to protect homosexuals from discrimination).

The First Circuit noted that, in those three cases, the High Court “did not adopt some new category of suspect classification or employ rational basis review in its minimalist form; instead, the Court rested on the case-specific nature of the discrepant treatment [resulting from], the burden imposed [by], and the infirmities of the justifications offered [for]” the legislation at issue. 682 F.3d at 10. The Court of Appeals pointed out that in all three cases ' Moreno, City of Cleburne and Romer ' the High Court “stressed the historic patterns of disadvantage suffered by the group adversely affected by the statute.” Id. at 11. “As with the women, the poor and the mentally impaired,” the First Circuit continued, “gays and lesbians have long been the subject of discrimination. ' The [Supreme] Court has in these cases undertaken a more careful assessment of the justifications than the light scrutiny offered by conventional rational basis review.” Id . (citing Lawrence v. Texas , 539 U.S. 558, 571 (2003)).

The Court of Appeals determined that DOMA could not withstand that kind of “more careful assessment” of the statute, citing the burdens placed on same-sex couples by DOMA:

[T]he combined effect of DOMA's
restrictions on federal benefits will not prevent same-sex marriage where permitted under state law; but it will penalize those couples by limiting tax and social security benefits to opposite-sex couples in their own and all other states. [And] [f]or those married same-sex couples of which one partner is in federal service, the other cannot take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.

682 F.3d at 11. The First Circuit concluded that those burdens are comparable to the burdens found to be substantial in the three Supreme Court cases where the legislation involved did not pass constitutional muster.

But the Court of Appeals' equal protection analysis was not the end of its inquiry. The court then examined DOMA in light of the plaintiffs' federalism-based challenges to the statute, pointing out that the Supreme Court has “scrutinized with special care federal statutes intruding on matters customarily within state control” in United States v. Morrison , 529 U.S. 598 (2000), and United States v. Lopez , 514 U.S. 549 (1995). The First Circuit noted that:

[t]he lack of adequate and persuasive findings led the [High] Court in both cases to invalidate the statutes under the Commerce Clause even though nothing more than rational basis review is normally afforded in such cases [and that] [t]he Supreme Court has made somewhat similar statements about the need for scrutiny when examining federal statutes intruding on regulation of state election processes.

682 F.3d at 13 (citations omitted).

The First Circuit examined the lack of formal findings by Congress leading to the passage of DOMA as well as the ostensible rationales justifying the statute, viz.: “(1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.” Id. at 14 (quoting H.R. Rep. No. 104'664, at 12). The court concluded that:

the rationales offered do not provide adequate support for section 3 of DOMA. Several of the reasons given do not match the statute and several others are diminished by specific holdings in Supreme Court decisions more or less directly on point. If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress' will, this statute fails that test.

682 F.3d at 15. Referring to Supreme Court precedents calling for “closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern” the First Circuit noted that, while many Americans believe that marriage is the union of a man and a woman and live in states where that is the law, “[o]ne virtue of federalism is that it permits ' diversity of governance based on local choice ' .” Id. at 16. And that, the court concluded, “applies as well to the states that have chosen to legalize same-sex marriage.” Id. Accordingly, the First Circuit ruled that Congress's denial of federal benefits to same-sex couples lawfully married in Massachusetts, as reflected in Section 3 of DOMA, is not adequately supported by any permissible federal interest.

So heavily ' and self-consciously ' has the First Circuit relied upon its own reading of various Supreme Court precedents in its decision to apply “closer than usual” scrutiny to DOMA that prognosticators across the political landscape predict that the High Court will grant certiorari in the case. The Court of Appeals itself noted that “a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct mis-readings (and even if it approves the result will formulate its own explanation).” Id. at 15-16. Few doubt that the Supreme Court will let the First Circuit (and the rest of us) know whether the three-judge panel, in striking down DOMA's Section 3, misread or misanalyzed governing precedent of the High Court.

The Ninth Circuit Denies an En Banc Hearing on Its Decision

When it denied a petition for rehearing en banc on June 5 in Perry v. Brown, the Ninth Circuit let stand an earlier decision, by a split three-judge panel of the court, that Proposition 8 is unconstitutional. It was reported early on that law professors and others shared the view that the narrowness of the ruling, tailored to California law, could mean that the Supreme Court will decline to hear the case. Professor Jane Schachter of Stanford Law School, for instance, stated that the narrow ruling made it less likely that the Supreme Court would hear the case, focusing as it does on the effect of Proposition 8 eliminating a right, the right to marry, previously granted to same-sex couples under the California Constitution. On the other hand, conceding that the question of whether the High Court would take up the case was “guesswork,” the same professor opined that “the Supreme Court 'may decide to take [the case]'” because of its high-profile nature and because California is an influential state that tends to set trends.

The Decision Striking Down Proposition 8

In a lengthy opinion handed down on Feb. 7, 2012, Perry v. Brown , 671 F.3d 1052 (9th Cir. 2012), the Ninth Circuit considered whether Proposition 8, which sought to eliminate the right of same-sex couples to marry under the California Constitution, violated the U.S. Constitution's Fourteenth Amendment. Id. at 1063. The court concluded that it does, declaring that, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Id. And, the court ruled, “[t]he Constitution simply does not allow for 'laws of this sort.'” Id . at 1063-64 (quoting Romer v. Evans , 517 U.S. 620, 633 (1996)).

The right of same-sex couples to marry under the California Constitution was made clear by that state's Supreme Court in In re Marriage Cases, 183 P.3d 384, 429 (Cal. 2008). It was in the Marriage Cases decision that California's highest court held that “the fundamental right to marry provided by the California Constitution could not be denied to same-sex couples ' .” Perry, 671 F.3d at 1066 (citing Marriage Cases, 183 P.3d at 433-34). The Ninth Circuit held that “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of 'marriage,' which the state constitution had previously guaranteed them ' .” 671 F.3d at 1076.

In striking down Proposition 8, the Ninth Circuit relied heavily on the Supreme Court's decision in Romer v. Evans , 517 U.S. 620 (1996). In Romer, the High Court had struck down an amendment to Colorado's Constitution, which prohibited the
state and its political subdivisions from providing any protection aga-inst discrimination on the basis of sexual orientation. The Supreme Court held that the amendment violated the Equal Protection clause because “[i]t is not within our constitutional tradition to enact laws of this sort [that] singl[e] out a certain class of citizens for disfavored legal status [and which] raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 633-34.

The Ninth Circuit held that, under the reasoning of Romer, Proposition 8 is unconstitutional:

By using their [ballot] initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground. ' [T]he People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.

Perry, 671 F.3d at 1096.

The Denial of Rehearing En Banc

Supporters of Proposition 8 almost immediately filed a petition for rehearing en banc, seeking to have the Ninth Circuit overrule the original 2-1 panel decision. Appellants' Petition for Rehearing En Banc, Perry v. Brown, 2012 WL 541541 (9th Cir. Feb. 21, 2012) (Nos. 10-16696, 11-16577). On June 5, nearly four months after the original decision on the merits, the court denied the petition in a tersely worded order. 681 F.3d at 1066. The court did, however, stay its mandate for 90 days pending the filing of a petition for certiorari in the Supreme Court. Id. at 1066-67 (further extending the stay through disposition by the High Court if certiorari is granted).

But the court's order denying the petition for rehearing was not issued alone. Instead, it was accompanied by a sharply worded three-judge dissent that in turn generated a concurrence by the two judges who formed the majority in the panel decision striking down Proposition 8. The dissent, referring to President Obama's expressed wish for a respectful conversation about the issue of same-sex marriage, accused the majority of “silenc[ing] any such respectful conversation” by denying a rehearing en banc. Id. at 1067 (O'Scannlain, J., dissenting). The dissent went further, stating that

[b]ased on a two-judge majority's gross misapplication of Romer v. Evans ' , we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia ' . Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California's democratic process without at least discussing this unparalleled decision as an en banc court.

Id. (O'Scannlain, J., dissenting) (citations omitted) (emphasis in original).

Judge Stephen Roy Reinhardt and Senior Judge Michael Daly Hawkins, the majority in the court's February decision on the merits, were moved to add a concurrence in response to the stinging dissent:

We are puzzled by our dissenting colleagues' unusual reliance on the President's views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

Id. (Reinhardt and Hawkins, JJ., concurring).

Petitioning for Certiorari

Supporters of Proposition 8 filed a petition for certiorari just eight weeks after the Ninth Circuit denied them a rehearing en banc. Petition for a Writ of Certiorari, Hollingsworth v. Perry, No. 12-144 (U.S. July 31, 2012) (Hollingsworth Pet.). The petition sets forth five main arguments seeking to overturn the panel decision that had declared Proposition 8 unconstitutional: 1) The question presented by the case is “exceedingly important.” In this argument, petitioners hope to overcome any argument that the Ninth Circuit's ruling is narrow ' limited to California law ' and not appropriate for review by the Supreme Court. See Hollingsworth Pet. at 13-15; 2) The Ninth Circuit's decision conflicts with Crawford v. Board of Educ. , 458 U.S. 527 (1982). Seeking to overcome the Ninth Circuit's analysis that Proposition 8 is unconstitutional on the ground that it stripped away a right previously granted to same-sex couples, petitioners argue “the fundamental lesson of Crawford is that a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place.” Hollingsworth Pet. at 17; 3) The Ninth Circuit's decision misapplies Romer v. Evans , 517 U.S. 620 (1996). Similar to their argument regarding Crawford, petitioners argue that the Court of Appeals incorrectly applied Romer to support the conclusion that California could not eliminate a right previously granted to same-sex couples. Hollingsworth Pet. at 17-22; 4) The Ninth Circuit's decision conflicts with Baker v. Nelson , 409 U.S. 810 (1972). Petitioners cite Baker, in which the Court dismissed an appeal from Minnesota's highest court, for want of a federal question, on the issue of whether a State's refusal to recognize same-sex relationships as marriages is unconstitutional. They argue that “[t]he Ninth Circuit's decision ' conflicts with binding precedent of this Court [in Baker] holding that the traditional definition of marriage does not violate the Fourteenth Amendment.” Hollingsworth Pet. at 23; 5) The Ninth Circuit's holding that Proposition 8 serves no legitimate governmental purpose conflicts with precedent. In this longest argument of the petition, same-sex marriage opponents take issue with the Ninth Circuit's conclusion that none of the ostensible justifications for Proposition 8 serves a legitimate purpose. Petitioners argue that: (i) the traditional definition of marriage serves a vital societal interest in “responsible procreation and child-rearing”; (ii) Proposition 8 serves California's legitimate interest in “proceeding cautiously” when reconsidering a redefinition of marriage; and (iii) the purpose of Proposition 8 is not to dishonor gays and lesbians. See Id. at 23-39.

Conclusion

It remains to be seen whether the Supreme Court will agree with the view that the Ninth Circuit's decision striking down Proposition 8 was a “narrow” one ' narrow enough, that is, to avoid review ' or whether it will agree with supporters of Proposition 8 that the decision has ramifications beyond California that merit review. It is true that the decision avoided a ruling on the broader issue of whether a state may ban same-sex marriage. But it is also true that the Ninth Circuit declared Proposition 8 violative of the Fourteenth Amendment to the United States Constitution. And the Supreme Court is the ultimate arbiter of what is or is not violative under the federal Constitution. As a result, it may well be that ' as many expect will be true with respect to the First Circuit's decision invalidating DOMA ' the Supreme Court will weigh in on Perry and determine whether Proposition 8 passes constitutional muster.

Frank Gulino, a member of this newsletter's Board of Editors, is a long-time appellate practitioner in New York City, and is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.