The congressional group that's defending the Defense of Marriage Act before the U.S. Court of Appeals for the Ninth Circuit is softening -- just a little -- its opposition to the idea of proceeding directly to en banc review.
In a filing Friday, the Bipartisan Legal Advisory Group reiterated that it believes a three-judge panel is capable of deciding Golinski v. Office of Personnel Management. But the mostly Republican group of House representatives suggested that direct en banc review of the challenge to DOMA might save the parties time and money.
“It is in all parties’ interest that the Supreme Court resolve this issue sooner, rather than later,” Bancroft partner Paul Bartomolucci wrote for BLAG. “Thus, if en banc review will eventually occur, it should occur now.”
In Golinski, a Ninth Circuit staff attorney who legally married her wife in 2008 is challenging the federal government's refusal to extend health insurance benefits to same-sex spouses. U.S. District Judge Jeffrey White of San Francisco in February ruled that DOMA violates Karen Golinski's equal protection rights.
The Department of Justice, which originally defended DOMA in the litigation, is now attacking it on appeal, and has asked the Ninth Circuit to start with an 11-judge en banc panel. DOJ is arguing that the Ninth Circuit should abandon one of its precedents for deciding discrimination claims of gays and lesbians, and an en banc panel would be more free to do so.
BLAG has said from the beginning that what it wants is certainty as to which court will be presiding, so it can brief the case accordingly. "The House wants to ensure that the taxpayer dollars not be expended needlessly in this litigation,” Bartomolucci wrote. “If the court were to grant the Petition after the House had substantially completed a panel brief, taxpayer dollars would be wasted because the House then would have to shift gears and prepare a substantially different brief.”
While joining DOJ’s request for expeditious review, Bartomolucci asked that his group get 30 days to file an opening brief once the court resolves the en banc issue. If granted that could force a slight delay in oral arguments, which the court has tentatively fast-tracked for September.