The Obama Administration has decided not to defend the constitutionality of the Defense of Marriage Act. The House Republicans, represented by conservative-lawyer superstar Paul Clement, has been litigating this issue in the 1st and 2nd Circuits. Lyle reports that the Solicitor Genreal filed a brief with the Supreme Court in 2nd Circuit’s recent case striking down DOMA under some form of heightened scrutiny. Wait, what?
The Solicitor General was not defending this law in the 2nd Circuit. The Solicitor General’s position won in the 2nd Circuit–DOMA was struck down. The 1st Circuit also struck down DOMA. There is no circuit split. So what exactly is the Solicitor General asking for?
The answer is somewhat complicated. The brief was styled as a “Supplemental Brief for the United States” and submitted under Docket No. 12-307. The United States filed a petition for a writ of certiorari in this file on September 11, 2012–“before judgment was filed.” This was an appeal directly from the S.D.N.Y. opinion to the Supreme Court, which also found that DOMA was unconstitutional. Again, why did the United States appeal an apparent victory from a district court directly to the Supreme Court? As we saw with the Health Care cases, the Obama Administration has been intent on rocket-docketing important issues to the Supreme Court.
Though, the timing on this case is even more pressing, in some senses, than the ACA case. Lyle notes that:
If the Court takes that advice, it would not slow the processing of the eight DOMA petitions that are now awaiting the Justices’ attention. It has been expected that the Justices would examine those together next month, perhaps at its November 20 Conference.
For sure at this conference, the Court will consider a brief authored by President Obama’s SG–and that was certainly important. But, for all we know, Solicitor General Verrilli may only have his job until early January. We very well may have a new SG in a few months. And if this case is argued in the spring, we may have a whole new strategy before the Court.
How would a change in administration affect this litigation?
Well presumably the House Republican group will drop out. But will Paul Clement argue anyway? A special assistant to the SG office? And will the changed administration affect any stated governmental interests? Will the new SG file supplemental briefs changing course? Will the new SG suddenly find that heightened scrutiny is not applicable? Will the new SG argue that some compelling interests his predecessor argued are not so compelling?
Lyle also notes that there are some procedural deficiencies with the Windsor case. Perhaps a Romney Administration will shift strategy and focus on these infirmities.