First the Justice Department tried to get the Ninth Circuit to grant immediate en banc review in a constitutional challenge to the Defense of Marriage Act.
Having been turned down, DOJ is now aiming even higher -- on Tuesday it petitioned all the way to the Supreme Court without any ruling yet from the Ninth Circuit.
"This court has previously granted certiorari before judgment when necessary to obtain expeditious resolution of exceptionally important legal questions," the government states in the petition [pdf] by Solicitor General Donald Verrilli Jr. and seven other Justice Department attorneys. They point to previously expedited cases involving the constitutionality of the U.S. Sentencing Guidelines, race-based college admission programs and the Iran hostage agreement as precedents.
The strategy also underscored the government's wish to create heightened judicial protection for all claims of sexual orientation discrimination.
The government actually filed for cert in two DOMA cases Tuesday: Office of Personnel Management v. Golinski -- the Ninth Circuit case -- and Massachusetts v. United States Department of Health and Human Services, a case decided in May by the First Circuit. Both raise the issue of whether the federal government may deny insurance benefits to the legally married spouses of same-sex couples.
In the Massachusetts case, both the district court and the First Circuit ruled that DOMA does not meet rational basis review. That's the least stringent test of equal protection -- but it essentially requires a finding that the legislators who adopted the law were motivated by animus toward gays and lesbians.
In Golinski, however, Judge Jeffrey White of the Northern District of California "engaged in de novo consideration of the applicable level of scrutiny, having concluded that it was not bound by circuit precedent applying rational basis review to sexual orientation," the government's petition notes.
White did hold in the alternative that DOMA fails rational basis review. The angry amicus curiae brief his ruling generated from 10 GOP senators highlights the political sensitivity of that rationale.
In addition to petitioning for cert, the government also filed its brief on the merits to the Ninth Circuit in Golinski, which has scheduled arguments in the case for September under an accelerated briefing schedule. The government again emphasized the heightened scrutiny framework, asking the Ninth Circuit to overrule its own 1990 decision limiting gay discrimination claims to rational basis review.
"While recognizing existing circuit precedent, we respectfully submit that this precedent is incorrect and should be remedied at the appropriate stage in this litigation as this court deems appropriate," states the brief, which is signed by Acting Assistant AG Stuart Delery, U.S. Attorney Melinda Haag and three members of the Justice Department's civil division.