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Government asks US high court to consider DOMA case

By: DOLAN MEDIA NEWSWIRES//October 31, 2012//

Government asks US high court to consider DOMA case

By: DOLAN MEDIA NEWSWIRES//October 31, 2012//

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By Lisa Keen
Dolan Media Newswires

The Solicitor General is urging the U.S. Supreme Court to ignore the front of the line in the Defense of Marriage Act petitions for certiorari and instead agree to hear the last one filed.

Solicitor General Donald B. Verrilli Jr., in a brief filed Oct. 26, argues that the 2nd Circuit’s Oct. 18 decision in Windsor v. U.S. “materially strengthens this case as a vehicle for resolving the constitutionality” of the core provision of DOMA.

That provision, Section 3, prohibits the federal government from recognizing the validity of a marriage license granted to a same-sex couple. Courts in three circuits have found the law unconstitutional, and there are currently eight pending petitions or cross-petitions appealing those decisions.

Verrilli argues that the 2nd Circuit case is a “more appropriate” one to review than the original DOMA challenges, filed by Boston-based Gay & Lesbian Advocates & Defenders and the Massachusetts Attorney General’s office. In those cases, the 1st Circuit said that it was constrained by a precedent that limited its judicial review to rational scrutiny.

Both the 1st and 2nd circuits ruled that Section 3 of DOMA violates equal protection. But the Windsor decision marked the first time a federal appeals court had applied heightened scrutiny to a law that treated people differently based on their sexual orientation.

Meanwhile, a legal team headed by former Solicitor General Paul Clement, representing the Republican-controlled House Bipartisan Legal Advisory Group, has urged the Court to review the 1st Circuit cases instead.

What neither legal team has discussed in the briefs is the expectation that Justice Elena Kagan will recuse herself from the 1st Circuit cases. In response to a question during her confirmation hearing, Kagan said that, as solicitor general, she and members of her staff “reviewed some briefs and participated in some discussions” related to some DOMA cases. Kagan was no longer Solicitor General in November 2010, when the Windsor case was filed.

Many court observers believe that, if Kagan recuses herself, there is a significant likelihood of a tie vote in a DOMA case.

On Oct. 29, the Supreme Court said that it will discuss all eight of the DOMA petitions at its Nov. 20 conference. That same day the Court will also discuss an appeal from the 9th Circuit striking down California’s ban on same-sex marriages, known as Proposition 8, and a 9th Circuit decision striking down an Arizona law barring gay state employees from receiving the same job benefits for their domestic partners as straight employees obtain for their spouses.

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