The Department of Justice has decided to rig the game in order to get the federal Defense of Marriage Act (DOMA) declared unconstitutional, and in the process coax the Supreme Court into granting homosexuality the heightened status of a “quasi-suspect class” under the equal protection provisions of the 5th and 14th Amendments to the Constitution, much like race, sex and religion. The DOJ is also manipulating the federal appeals process a bit in order to achieve its goals, so the chutzpah it takes to attempt this maneuver is impressive. And maddening.

Here’s what’s happening.

You may remember that in May, the First Circuit U.S. Court of Appeals, in a pair of related cases (HHS v Massachusetts and OPM v. Gill – let’s call them both Gill for short), declared section 3 of the federal Defense of Marriage Act (which defines marriage for all federal purposes as between one man and one woman) unconstitutional. The defense of DOMA in the Gill case had been abandoned by the DOJ and left to the House of Representatives and attorney Paul Clement to pick up. Last week, Clement filed a petition with the Supreme Court asking them to hear the appeal and overturn the First Circuit’s decision.

So far in this story, there’s nothing unusual, at least procedure-wise.

But then on July 3 the DOJ jumped in and also asked the Supreme Court to hear the appeal. Odd behavior, given that the Obama administration’s position that DOMA  is unconstitutional won. Winners don’t usually appeal. The DOJ petition sort of mumbles something about “so that this question may be authoritatively decided by this Court,” but that’s not a reason to appeal.  If you win, you typically ask the Court to deny the other side’s request for an appeal.

So if you smell something fishy, well, so do I. So what’s really going on?

(Dig Deeper – continue reading)

The First Circuit decision in Gill, while ostensibly a “victory” for the Obama Administration’s attempt to undermine DOMA, was so badly reasoned that it risks a Supreme Court reversal. You see, the First Circuit decision admitted that under all of the normal tests a court uses to examine a law in an “equal protection” challenge (i.e., treating similarly-situated classes of people unequally), DOMA would pass. But, seemingly bent on getting to the policy decision that it wanted, the court invented a new test, what it referred to in the opinion as “closer than usual” scrutiny – a test which it then declared that DOMA could not meet.

But the Supreme Court typically frowns on lower courts creating new legal tests like that, so the decision, I’m sure, is not going to be the slam-dunk affirmance at the high court that the DOJ and its gay-activist allies would have wished for. So, apparently concerned about the prospects for this first DOMA case to reach the Supreme Court, the DOJ decided to appeal its own victory. But the DOJ needed a different argument, something to take the Supreme Court’s attention away from the First Circuit’s weak attempt to re-write equal protection law. Something that might add more alternatives to the First Circuit’s reasoning. A way to snatch victory from the impending jaws of defeat, if you will.

So, on the same day that it filed its appeal in Gill, the DOJ also filed an appeal (typically called a “petition for certiorari,” or ‘petition for cert,” for short) with the Supreme Court in OPM v. Golinski, another DOMA case, in which a San Francisco federal judge last February declared section 3 of  DOMA unconstitutional.  In holding that the federal government must grant marital benefits to its employees who are in same-sex marriages, the judge found that homosexuality deserved “heightened scrutiny” as a “quasi-suspect class.” Higher levels of judicial scrutiny have been reserved for classifications such as race, sex or religion, and adding sexual orientation to the list is a radical step that will have significant legal consequences for marriage laws and religious liberty. The Golinski decision, to my knowledge, is the only federal court decision thus far to invoke any type of “heightened scrutiny” in overturning DOMA. It also held that DOMA failed the much more lenient “rational basis” test as well. With both of those holdings, Golinski gives the DOJ the types of arguments that Gill rejected. Which is exactly why the DOJ needs it.

But wait, there’s more to this fish story. The Golinski decision the DOJ wants to appeal to the Supreme Court is from a low-level federal district court in San Francisco. That decision is currently at the 9th Circuit on appeal. The 9th Circuit has not ruled in that case yet. Oral arguments are not even scheduled until September. And the 9th Circuit has never held that “heightened scrutiny” is appropriate for a classification based on sexual orientation. In fact, it’s held the opposite. Perhaps unsurprisingly, then, the DOJ is asking the Supreme Court to take the Golinski case out of the hands of the 9th Circuit before they can tinker with and possibly reject the “heightened scrutiny” aspect of the trial court decision. But the DOJ won’t admit that that’s the reason for such an extraordinary request. Instead it feebly lists in its petition for cert the reason why the Supreme Court should take this not-ripe-for-appeal lower court decision is the “exceptional public importance” of the issue.

“Exceptional public importance”? Hmmm. There are lots of other DOMA cases floating around the federal courts. Why appeal the one case – which isn’t even ripe for the Supreme Court -  that just happens to rely on “heightened scrutiny” in its ruling? The timing of both appeals, on the same day, gives the DOJ’s game away.

They’re stacking the deck against DOMA – again. Not content with a lowly pair of deuces from the Gill decision, the DOJ is attempting to pull a couple aces from its sleeve in order to improve its hand.

Just what we’ve come to expect from the Department of Justice. Unfortunately.

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