Legal Pad

DOMA Challenger: Legislators Not Necessarily Bigoted

[Scott Graham]

The Ninth Circuit staff attorney who is challenging the Defense of Marriage act has filed her merits brief on appeal, and her lawyers want to make one thing perfectly clear: They’re not calling the United States Congress bigoted. Not necessarily.

Ten senators who voted for DOMA in 1996 have complained that in striking down the law earlier this year, U.S. District Judge Jeffrey White ruled that “the legislative history is replete with expressed animus toward gay men and lesbians.” And House Republicans say the Justice Department, which has joined staff attorney Karen Golinski’s effort to invalidate the law, has been "accusing Congress of bigotry and animus in enacting the law.”

In a brief filed Thursday for Golinski at the Ninth Circuit [pdf], Morrison & Foerster partner Rita Lin is trying to turn down the temperature a bit. A subheading in the brief states, “Finding That DOMA Fails Rational Basis Review Does Not Require Concluding That Bigotry Motivated The Legislators Enacting It.”

“That a law lacks a rational basis does not necessarily imply ‘malice or hostile animus’ but rather ‘simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different,’ Lin wrote, quoting a concurrence from Supreme Court Justice Anthony Kennedy in a disabilities case.

Whether that will assuage the legislators is unclear -- Judge White quoted that same passage from Kennedy in his ruling in the case [pdf]. 

Lin also quoted from the Supreme Court’s June 28 health care ruling to make a point about DOMA. “Last week Chief Justice Roberts observed that ‘sometimes “the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent” for Congress’ action,’” she wrote. “DOMA is an unprecedented departure from this nation’s federalist tradition, the first time in our history that Congress has intruded on the states’ sovereignty in determining who is validly married.”

The case is Golinksi v. U.S. Office of Personnel Management, Nos. 12-15388 and 12-15409.

Who Needs a Ninth Circuit Ruling? U.S. Files for Cert on DOMA

[Scott Graham]

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.

 

House Group Softening (Slightly) on En Banc Review for DOMA

[Scott Graham]

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.

Lawyer Groups Say Gay Judge Can Rule on Gay Marriage

[John Koopman]

More than 40 legal organizations have banded together to file a friend of the court brief in support of former Chief Judge Vaughn Walker, and his ruling in the Proposition 8 case.

The organizations are led by Bay Area Lawyers for Individual Freedom, an association of gay, lesbian, bisexual and transgender lawyers around San Francisco. Other LGBT lawyer groups are there, as well as various associations of minority lawyers, including the Asian Law Caucus, the Black Women Lawyers Association of Northern California and the Bay Area Association of Muslim Lawyers.

Ninth Circuit Kicks Prop 8 Video Issue to Ware

[Ginny LaRoe]

The weighty issues of the Prop 8 case may be at the appellate courts, but the spotlight is about to shine on the judge inheriting the historic gay marriage case in the court below.

The first order of business for U.S. District Chief Judge James Ware? Judging the Prop 8 judge. Ware is being asked to scrutinize some of the work of his former colleague on the bench, Vaughn Walker, who left earlier this year after striking down the ban.

Walker Passes Gavel to Ware. But What's With the Leis?

Wearing a paper lei as his formal portrait was unveiled, U.S. District Judge Vaughn Walker officially passed the gavel to new Chief Judge James Ware at a ceremony Thursday at San Francisco's federal building.

Photos: Jason Doiy

Prop 8 Proponents Have Much to Say About Walker's Ruling

[Ginny LaRoe]

Proposition 8 supporters kicked off their appellate fight to preserve California's gay-marriage ban Friday night with a 31,000-word opening brief.

They were up against a midnight deadline to get the brief to the Ninth Circuit U.S. Court of Appeals, which is now set to review the August district court decision that rendered the ban unconstitutional.

As expected, proponents made their case for standing and level wide-ranging arguments for upholding the ban, taking particular aim at Walker's finding that Prop 8 failed to meet rational basis review. The decision "defames as anti-gay
bigots not only seven million California voters, but everyone else in this Country, and elsewhere, who believes that the traditional opposite-sex definition of marriage continues to meaningfully serve society’s interests," including "the current President of the United States," says the brief, signed by Charles Cooper.

The brief further argues that Walker's fact finding was unreliable and irrelevant, and that the ruling is contrary to binding precedent and flies in the face of uniform judgment of state and federal appellate courts across the country.

A response is due in a month, and oral arguments are set for December.

For Prop 8 Lawyers, a Working Weekend

[Greg Mitchell]

The Ninth Circuit panel that will decide whether to extend the stay of Chief Judge Vaughn Walker's ruling on Prop 8 put out the briefing schedule a few minutes ago: Ted Olson and David Boies need to file their opposition papers, not to exceed 35 pages, by 11:00 p.m. tonight.

Then Prop 8's lawyers will get cranking: They have until Monday at 9:00 to file a response of up to 15 pages.

Think of them when you head to brunch.

Photos: The Stay Is Lifted! Sort Of.

[Photos by Christine Jegan]

 
The crowd gathers outside City Hall in San Francisco Thursday in anticipation, with some gay and lesbian couples hoping that Chief Judge Vaughn Walker would lift the stay, clearing the way for immediate marriages.

Pacifica residents Sarah Shuchter and partner April Williamson were among those checking their phones for updates on Walker's decision as they waited in line for a marriage license.

More photos of reactions after the jump...

The Victors

[Photo by Jason Doiy]

Within an hour of Chief Judge Vaughn Walker’s ruling, David Boies and Ted Olson, along with the four plaintiffs suing to strike down Prop 8 and other high profile individuals, assembled in San Francisco.

From right to left are: Dennis Herrera, Therese Stewart, Kristin Perry, Sandra Stier, David Boies, Chad Griffin, Ted Olson, Jeff Farrillo and Paul Katami