Both sides in the fight for marriage equality have requested the nation’s top court weigh in on two cases regarding the federal ban on same-sex marriage.
Last week the U.S. Department of Justice and the Congressional body that is backing the Defense of Marriage Act both petitioned the U.S. Supreme Court to hear two cases in which DOMA was recently ruled to be unconstitutional.
The Supreme Court will decide whether to accept the cases when it begins its new term this fall.
In Golinski v. Office of Personnel Management, a federal judge in California in February ruled that DOMA was unconstitutional in its applicability to the plaintiff, a federal employee who was denied health benefits for her same-sex spouse because of DOMA. Oral arguments are scheduled before an appeals court in September, but the Supreme Court intervention would halt that process.
Tara Borelli, staff attorney at Lambda Legal, which is representing Golinksi, said the recent developments highlight “the desire by all, the government included, to resolve this issue quickly.”
“It is clear to us, to the Solicitor General and to the Department of Justice that DOMA’s days are numbered,” Borelli said, noting that the last four courts to consider the constitutionality of Section 3 of DOMA — which limits the definition of marriage to one man and one woman — found that portion unconstitutional. “There are loving, married same-sex couples and grieving lesbian and gay widows and widowers around the country who are being hurt by the government’s actions. Every one of their stories demonstrates that DOMA is an unfair and discriminatory law that violates the Constitution.”
Following the filing, a bipartisan coalition of 130 Congressmembers — including Pennsylvania Congressmen Bob Brady (D-1st Dist.), Chaka Fattah (D-2nd Dist.) and Mike Doyle (D-14th Dist.) — submitted an amicus brief Tuesday in the Golinski case.
The representatives argued that DOMA’s Section 3 is unconstitutional and that cases involving potential discrimination against gays and lesbians deserve a heightened-scrutiny review process. The brief underscored the notion that the House Bipartisan Legal Advisory Group, which stepped in to defend DOMA after the Obama administration declined, does not represent the views of all House members.
DOJ also asked the Supreme Court to review Gill v. OPM/Massachusetts v. U.S. Department of Health and Human Services, a merged case in which both a federal judge and an appellate court found DOMA unconstitutional.
Late last week, the BLAG petitioned the Supreme Court to review Gill.
In its filing, the body urged the court to take the case because DOMA is an “issue of great national importance.” The motion argued that the recent appellate ruling — which marked the first time a federal appellate court found DOMA unconstitutional — seems to oppose precedent and represents a “new standard of equal-protection review.”
Also last week, a federal judge denied BLAG’s motion to stay a ruling in another DOMA challenge, Pedersen v. OPM, filed in Connecticut by a group of legally married same-sex couples.
In denying BLAG’s request, Judge Vanessa Bryant referenced the likelihood the issue will soon come before the Supreme Court.
“The court finds that public interest weighs against the entry of a stay in this matter, as the challenge to the constitutionality of Section 3 of DOMA presents an important issue to the nation as a whole, such that the 2nd Circuit and potentially the Supreme Court would benefit from as many opinions and analyses as possible to enrich their review,” she said.