Gay & Lesbian Advocates & Defenders push Supreme Court to rule on DOMA

Respondents from Nancy Gill, et al. and the individual plaintiffs in Gill v. Office of Personnel Management filed a brief to the Supreme Court in response to the Bipartisan Legal Advisory Group's (BLAG) recent writ of certiorari, which petitions the Supreme Court to hear a case.

BLAG is the group composed of three Republican and two Democratic House members that has stepped in to defend the so-called Defense of Marriage Act since the Obama administration declared DOMA unconstitutional in February 2011. Now BLAG is asking the Supreme Court to review the 1st Circuit's decision in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, in which DOMA was ruled unconstitutional for prohibiting federal recognition of legally married same-sex couples.

In their petition, BLAG asks the Supreme Court if claims of discrimination based on sexual orientation should receive a standard of judicial review more demanding than a traditional rational basis review. BLAG claims the lower court did not follow traditional rational basis review standards and "deviat[ed] from settled law," while ‘inventing' a new form of equal protection review.

In a rational basis review, courts look at levels of scrutiny when deciding on issues dealing with the due process or equal protection clause of the U.S. Constitution in relation to cases involving the 5th or 14th Amendment. Ultimately, courts must determine if there is a strong enough - or "rational" - relationship to the government interest for a law to be upheld.

The Supreme Court has never explicitly defined a scrutiny standard for cases dealing with violations of the 14th Amendment, so appeals courts are forced to review the context of other cases.

The BLAG petition states:

As the First Circuit recognized, this case calls out for this Court's review. The court of appeals has invalidated a duly-enacted Act of Congress and done so even though it acknowledged both that DOMA satisfies ordinary rational basis review and does not implicate heightened scrutiny. In the established world of equal protection law that result should have been impossible.

In a response to BLAG's legal filing, Gay & Lesbian Advocates & Defenders (GLAD) - the same legal group that brought Gill v. Office of Personnel Management - wrote:

Though respondents agree that the issues presented are of great importance and require definitive resolution by [the] Court...the Court should not, in weighing whether to grant review, be persuaded by the distorted analysis of the merits of the case that BLAG presents in its petition.

GLAD's petition then reiterates:

Based on the First Circuit's recognition that this Court's precedents do not apply some one-size-fits-all rational basis review but rather apply rational basis review with sensitivity to the context in which the cases arise, BLAG accuses the First Circuit of ‘deviat[ing] from settled law,' and ‘inventing' a new form of equal protection review. Not so.

Justices of the Court will return from their summer recess on September 24 will have until October to decide which, if any, pro-DOMA or DOMA-challenging cases they will hear.

Read all about the ongoing challenges to DOMA here.