When the justices of the U.S. Supreme Court gather for their Nov. 30 conference, they will face an array of same-sex marriage related petitions that have arrived at the court in an unusual confluence of timing and strategic litigating.
Scheduled for Friday's conference are 10 petitions, which, after counting cross-petitions as one, essentially make seven cases. The majority home in on Section 3 of the federal Defense of Marriage Act (DOMA). That section defines marriage for all federal purposes as between a man and a woman.
"It's kind of unbelievable," said Douglas NeJaime of Loyola Law School, Los Angeles, about the timing. He added that it puts pressure on the court to decide the central question about DOMA: whether Section 3 is unconstitutional as applied to legally married, same-sex couples. "There is no legitimate reason to delay nationwide resolution of the DOMA question," he said.
The justices have little choice but to grant review, said Paul Smith, head of the appellate and Supreme Court practice at Jenner & Block, who is working with lawyers for Gay & Lesbian Advocates & Defenders (GLAD) in one of the cases.
"They pretty much have to because a federal statute has been held unconstitutional by two circuit courts and by a number of district courts," he said. "They can't let it lie. If they deny cert, presumably all stays expire and thousands of people will be trying to invoke rights under federal law and that will cause lots of complexity."
So many sexual orientation discrimination petitions arriving at the court in the same year is "fascinating," and suggests "the calculated strategy" of gay rights advocacy groups, said NeJaime, who has written extensively about social movements and sexual orientation discrimination.
"I do think there is an analogue to civil rights advocacy," he said. "Unlike this, where we have all of these petitions pending in the same year, you had the court routinely deciding civil rights petitions year after year, not only Brown v. Board of Education. There were a host of civil rights cases around the country constantly going up to the court. The dynamic is in some ways similar here. Some of this litigation is brought by big gay rights organizations, like Lambda Legal Defense and Education Fund, just like big civil rights organizations, like the NAACP, did. Some is brought by new organizations, like the one behind the challenge to [California's] Prop. 8, and we saw some of that in the civil rights era as well.
"It is all about that race to the court," he said.
Removing rights and benefits
The non-DOMA petitions are Brewer v. Diaz and Hollingsworth v. Perry. Brewer comes out of Arizona, where voters in 2008 amended the state constitution to define marriage as between a man and a woman. The state provides health care benefits to its employees and their dependents. In 2008, a state regulation expanded the definition of "eligible dependent" to include a "domestic partner," defined as a "person of the same or opposite gender" who had lived with the employee for at least a year before applying for benefits, was financially interdependent with the employee and met other qualifications. It also amended the definition of "child" to include a domestic partner's child.
However, in 2009, in the middle of a budget crisis, according to the state, the legislature passed a law redefining which state employees' dependents could receive benefits and limiting them to spouses and children. The law was challenged as discriminating against gay and lesbian employees. A district court granted a preliminary injunction, and the U.S. Court of Appeals for the Ninth Circuit affirmed and denied en banc review, agreeing that the challengers showed a likelihood of success on the merits. The circuit court said that "when a state chooses to provide benefits, it may not do so in an arbitrary or discriminatory manner that adversely affects particular groups that may be unpopular."
Arizona is represented by Paula Bickett, chief counsel of Civil Appeals, who argues the law meets the equal protection clause's rational-basis test. The challengers' counsel is Tara Borelli of Lambda Legal, who urges the court to deny review because their claim has not been fully developed yet and is not ripe for review.