The question of whether to hope for a DOJ appeal

by: Adam Bink

Fri Jul 09, 2010 at 16:41

The strategy and legal question that has been buzzing around LGBT circles, and articulated here at OpenLeft by Mark Matson, is whether or not advocates for equality between same-sex and opposite-sex couples should actually be hoping for the Department of Justice to appeal the case to the First Circuit and then the Supreme Court. The reason is because these cases are limited in their effects to the married, same-sex couples residing within Massachusetts borders only, while if the case is appealed and won at the First Circuit, same-sex couples in other states (most notably New Hampshire, which has legalized same-sex marriage, but also a few other states and Puerto Rico) would benefit. And of course, if won at the Supreme Court, it would affect the country.

The answers is complicated. Let me first get into the pathway for equality going forward.

First, let me say the caveat that after speaking with numerous legal experts, it is unlikely that one of the three following events would occur:

1) The Department of Justice declines to appeal.
2) The Department of Justice appeals, and our side wins, but the Department of Justice then declines to appeal to the Supreme Court.
3) The Department of Justice appeals, and our side wins, and the Department of Justice appeals to the Supreme Court, but the Supreme Court declines to hear the case.

I'm also told #3 is especially unlikely to occur if our side wins at the First Circuit.

With that said, let's say for the sake of argument that one of the three does occur. The question on the table, then, is what is the pathway to equality for married, same-sex couples living in other states not in the First Circuit (either currently with legalized same-sex marriage now, or in the future)?

I spoke on the phone this afternoon with Gary Buseck, the Legal Director at GLAD, and over e-mail with Adam Bonin, the resident legal guru over at DailyKos and an attorney with Cozen O'Connor in Philadelphia. According to them, the pathway would be as follows:

1) Married, same-sex couples in other states/territories would need to experience some form of discrimination similar to what Gill experienced in the GLAD case, e.g. a denial of benefits such as health insurance for her partner that constitutes the federal government having two separate classifications of married couples- one with rights, one without. This is the rationale for the GLAD lawsuit.

2) The couples would need to become plaintiffs in a suit and file in the federal jurisdiction in which they live. This would then route through their own legal system, beginning with the appropriate federal district court and then into the Court of Appeals with jurisdiction over that district.


1) A state would need to experience the same kind of treatment as Massachusetts did, which under Coakley argued that it was being forced to choose between denial of federal aid and discriminating against its own residents.

2) A state Attorney General would need to file a similar lawsuit on these grounds.

Essentially, go through the same process that has been gone through here, should one of the three situations listed above occur.

And of course, the other avenue to accomplish the same goal is to enact Rep. Nadler's Respect for Marriage Act, which would repeal the entire DOMA statute, as well as legally extend the same federal rights and recognitions accorded to opposite-sex couples, no matter the state in which they are residing.

Now, does having to go through the legal maneuvers, plus the pain of continued discrimination, overpayment in taxes, having to buy one's own health insurance, denial of certain Social Security benefits, etc. while the cases are working their way through the system, constitute a reason to hope that the Department of Justice appeals so that the effects of the ruling can be expanded across the nation?

That may be the wrong question to ask. Aside from it being unlikely for one of the three situations to come true, it appears unlikely that the SCOTUS will not hear this case, sooner or later.

I say that for three reasons Gary and I worked through. One, it's not likely that one by one, a lawsuit or lawsuits will work its way through each of this country's twelve circuits (not including the Federal Circuit, which only does patent law) over the next few decades, and every single time the federal government declines to appeal. Nor is it likely that if the government does, that every single time the SCOTUS declines to hear them. If we lose at one, it's also not likely to happen for a second reason, which Gary pointed out to me- where there is a conflict in circuit court rulings- e.g., we win at the 1st Circuit but the 9th Circuit decides differently- that is often where the SCOTUS decides to step in. A third reason it's also not likely is because if our side prevails, I'm told it's more likely the SCOTUS will hear the case than if we lose.

So, when it comes to advocates for equality, there are definitely downsides to the government not appealing. On the other hand, this seems to be a road that has an end at the SCOTUS anyway, sooner or later. With that point of view, what would matter in determining whether or not to hope for appeal is your view of how friendly the SCOTUS is, now versus in the future. Which may be the better question to ask.

Adam Bink :: The question of whether to hope for a DOJ appeal

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Here's a question (0.00 / 0)
I think I read the briefs back when they were filed, but I can't recall.  Reading the opinion, it looks like GLAD emphasized discrimination between same sex and different sex married couples (essentially, the equal protection component of due process), rather than a liberty deprivation - federal government is penalizing people for exercising the right to get married (substantive due process). Any idea why? (Or am I wrong about the arguments GLAD made, as I'm only going on how the opinion characterized them?)

Given that the Court has long recognized marriage as a fundamental right, and that in this case there is no question that these people are married (unlike a case where people are asking to marry, which raises some different questions) this seems like an odd choice.

It could be that they were thinking past this issue to other cases (like the CA litigation) but I suspect courts would be more willing to say that the federal government cannot burden people married under state law than to expand the scope of impermissible sexual orientation classifications. A narrower win - one based on marriage not orientation - would be more likely to be upheld, in my opinion, although its entirely possible I'm missing something here.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

Don't know why (0.00 / 0)
Not enough of a legal guy, perhaps others more inclined that way have thoughts.

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Largely on Autopilot (4.00 / 3)
I don't think GLAD and other organizations are going to have much if any influence over the progression of these cases through the courts. The Obama Department of Justice has already sought to defend DOMA in court, so it would be extremely surprising if DOJ did not appeal these losses. And nobody should be an apologist for Obama on that. Politically he will and should suffer the consequences; he only has himself to blame if LGBTs sit at home on voting day. Good policy is good politics, and he should have lifted a finger to repeal DOMA, pass ENDA, halt DADT enforcement (as is his unambiguous prerogative), and repeal DADT. He's way, way behind the younger voters who were responsible for putting him in office.

This train has left the station and has momentum.

I'm crossing my fingers that the DOJ declines to appeal. (0.00 / 0)
There's still no word on whether they'd appeal.

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