Lyle Denniston of SCOTUSBlog explains some of what confused me about the Supreme Court’s order in accepting the cert petition in the DOMA case from the 2nd Circuit. Turns out there are two cert petitions filed in the same case, one from the Obama administration and one from the plaintiff:
The merits argument in the DOMA case — and that, too, was something the Court agreed to consider — is whether Section 3 of that statute violates the right to legal equality for same-sex couples who are legally married under state laws where they live. If the Court were to rule that the Court lacks jurisdiction, after finding that the Administration is not a proper one to appeal a ruling that it had won, that presumably would end that case. If it were to rule that the House GOP could not be in the case, there would be no defender of DOMA.
But there is still a private individual involved in that case — Mrs. Edith Windsor of New York City, who had to pay a federal tax on the estate she inherited from her same-sex spouse after the spouse’s death, because DOMA allows that only for the surviving spouse of a man-woman marriage. Incidentally, there is a dispute about even Mrs. Windsor’s own “standing,” but the Court did not mention that in its order in that case. Mrs.Windsor has her own petition at the Court, but it did not figure directly in the Friday orders.
So here’s what really appears to be going on. The Obama administration actually filed this cert petition before the 2nd Circuit ruled in the case, but they now agree with that ruling. So the question is, can they appeal a ruling that they won? The answer to that likely seems to be no. But I doubt that any of the parties to the case are going to argue that; the plaintiff wants this case to be heard as quickly as possible because Windsor is 80 years old. BLAG wants them to hear it because they lost in the 2nd Circuit. So no one in the case is likely to argue against jurisdiction here and the court, if it chooses to punt the case on that basis, will have to supply its own reasoning.
So if the court does punt it on jurisdiction, that would leave the 2nd Circuit ruling in place and that means DOMA would still be considered unconstitutional and unenforceable in those states (and in the 1st, 3rd and 9th circuits as well, unless they accept and overturn those rulings). But it’s still being enforced in those circuits that have not ruled it unconstitutional, which creates an equal protection problem. And there are 8 other cert petitions out there yet involving DOMA, so there are many other cases they could take on this. Which makes me wonder why they took this one instead of one of the others.
The question still remains on the issue of BLAG’s standing to act as defendants. Since the Obama administration won’t defend the law anymore, if the court says that BLAG has no standing to act as defendant, that means no one can do so. And that means, in essence, that the law can’t be challenged — even though the executive branch agrees that it’s unconstitutional. And would ruling that BLAG doesn’t have standing leave the lower court rulings in place or void them all? Either way, it’s a serious problem.
I still suspect that what is really going on here is that they’re trying to give themselves an out so they don’t have to decide the case on the merits. Another possibility is that the court will decide this case to set the standard of review and then remands all the other cases back to be decided in light of that standard. And if they do that, the ramifications are huge, not just for these cases but for any law that affects the LGBT community.
If the court decides that intermediate scrutiny has to be applied in such cases, it will likely unleash a whole bunch of challenges to various laws because the standard of review will be so much stronger than before. And whether that happens depends entirely on Justice Kennedy. This is going to be incredibly interesting to watch.