President Obama‘s Department of Justice quietly last night, on the eve of the Fourth of July holiday, asked the Supreme Court to rule on the constitutionality of DOMA, the Defense of Marriage Act than bans the federal government from recognizing same-sex marriages and allows the states to ban them as well. Consider this a full frontal assault on the beleaguered discriminatory law from an administration riding high after its very successful day in court with the Obamacare ruling.
In February of last year, President Obama and Attorney General Eric Holder declared Section 3 of the 1996 anti-gay marriage law to be unconstitutional, and announced they would enforce but no longer defend it in court.
Since then, federal court judges have found DOMA unconstitutional in several cases, and there are approximately 18 DOMA cases currently pending.
Yesterday, the Depoartment Of Justice filed this statement with the Supreme Court:
Although the Executive Branch agrees with the district court’s determination in this case that Section 3 is unconstitutional, we respectfully seek this Court’s review so that the question may be authoritatively decided by this Court. As explained above, to ensure that the Judiciary is the final arbiter of Section 3′s constitutionality, the President has instructed Executive departments and agencies to continue to enforce Section 3 until there is a definitive judicial ruling that Section 3 is unconstitutional.
In Golinski v. Office of Personnel Management, the California-based case before the U.S. Court of Appeals for the Ninth Circuit, DOJ is asking for the Supreme Court to take the case before the appeals court, which is scheduled to hear oral arguments in the case in September, even decides the case.
DOJ also is asking the Supreme Court to take review of another case, Massachusetts v. Department of Health and Human Services, that was decided by the U.S. Court of Appeals for the First Circuit on May 31. The House Bipartisan Legal Advisory Group, led by the House Republican leadership, had sought review of the case this past Friday, June 29.
In the filings to the Supreme Court, called petitions for a writ of certiorari, Solicitor General Donald Verrilli Jr., the DOJ’s top appellate litigator, argues that a single question is presented by the cases, which the Supreme Court should accept the cases to answer: “Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.”
An AP article in Politico notes:
The earliest the justices might decide to hear the case is in late September. Arguments probably would take place over the winter and a decision returned by late June 2013.
Currently, Speaker of the House John Boehner is spending $1.5 million to defend DOMA in the courts, and recently asked the Supreme Court also to rule on Massachusetts v. Department of Health and Human Services.
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