CQ TODAY ONLINE NEWS – LEGAL AFFAIRS
Updated June 1, 2012 – 10:20 a.m.
Marriage Ruling Puts Republicans on Spot
By John Gramlich, CQ Staff
House Republican leaders face a series of decisions over legal tactics, timing and cost after an appeals court on Thursday ruled that a 1996 law defining marriage as the union of a man and a woman is unconstitutional.
The House, under Republican leadership, stepped in to defend the Defense of Marriage Act after the Justice Department last year deemed it unconstitutional and said it would no longer defend the law. The Bipartisan Legal Advisory Group, a five-member House panel with a Republican majority, approved the strategy on a party-line vote and hired Paul D. Clement, a former solicitor general, as lead counsel representing the House.
House leaders are widely expected to take their defense of the law to the Supreme Court, something the 1st U.S. Circuit Court of Appeals — the first appellate court to rule that the law violates the Constitution — anticipated in its ruling by staying its decision until the high court can act. “Only the Supreme Court can finally judge this unique case,” the judges wrote.
A three-judge panel found that a section of the statute infringes on the Fifth Amendment’s guarantee of equal protection by denying married gay couples the same federal benefits that are granted to married heterosexual couples.
A spokesman for House Speaker
Among the most important is whether to appeal the ruling to the Supreme Court using the 1st Circuit case as a vehicle, or whether to wait for potential future rulings that could provide a different avenue to the high court. The 9th U.S. Circuit Court of Appeals in San Francisco is preparing to hear a separate challenge to the law in September.
Questions of Scope, Timing, Cost
In the case decided Thursday, the 1st Circuit left open some of the thorniest questions surrounding the law, such as whether gay couples have a right to marry under the Constitution and whether states that ban same-sex marriage should be forced to recognize such unions originating in states that allow it.
By asking the court to rule on the narrower question of whether benefits available to heterosexual couples should also be available to gay couples, House GOP leaders might be setting up a narrower ruling, legal experts said. Even so, some conservative advocacy groups predicted — and hoped — that the House would use the 1st Circuit case as a vehicle.
“It’s definitely going to happen,” said Tom McClusky, senior vice president for the legislative arm of the Family Research Council, a conservative advocacy group. “I have it on authority from a number of House leadership staff: There will be a cert petition filed to the Supreme Court” based on the 1st Circuit ruling.
Timing will be another question. House Republican leaders could choose to appeal immediately to the Supreme Court. Such a route could lead to a decision by next summer. Alternatively, leaders could put the appeal on a slower track by first asking for the full 1st Circuit to rehear the case. Requesting the full court to weigh in appeared unlikely because Thursday’s ruling was unanimous and signed by two judges appointed by Republican presidents: Judge Juan R. Torruella, who was appointed by Ronald Reagan in 1984, and Judge Michael Boudin, who was appointed by George Bush in 1992.
Another complication in taking a slower path to the high court is that Republicans are defending the law using taxpayer money.
Marriage Ruling Puts Republicans on Spot
Michael Cole-Schwartz, the communications director for the pro-gay rights group Human Rights Campaign, said the Bipartisan Legal Advisory Group has now lost its argument in support of the law in three lower courts, including both the trial and appellate court decisions in the 1st Circuit and a pair of district court decisions in California.
Cole-Schwartz accused Boehner of inflating taxpayer expenses by hiring Clement. House lawyers “would be finely suited to play a role in these cases, rather than going out to a white-shoe law firm,” he said.
While Republican leaders considered their next moves, Democrats celebrated the appeals court decision, calling it the latest evidence that the Defense of Marriage Act’s (PL 104-199) days are numbered. In addition to the Justice Department’s decision not to defend the statute, President Obama announced his support for same-sex marriage in May and senators have sought to repeal the Defense of Marriage Act legislatively.
“The increasing momentum challenging DOMA — by the public, in the courts, in Congress, and in the Obama administration — demonstrates that it is simply a matter of time before this discriminatory law is thrown out, once and for all,” six House Democrats — including Michigan’s
First posted May 31, 2012 1:22 p.m.