DoMA heads to Supreme Court…minus Kagan

by on June 2, 2012  •  In DoMA, Supreme Court

The unanimity of the First Circuit’s ruling that DoMA is unconstitutional virtually insures that a cert petition to the Supreme Court Elena_kaganwill be filed in the next 90 days, followed by an order granting certiorari in early October, followed by oral argument next winter, followed by a decision by June 2013. There’s just one big problem looming for lgbt rights advocates: Justice Kagan will almost certainly recuse herself.

The Court of Appeals decision in Commonwealth of Mass. v U.S. Dep’t of Health and Human Services [2012 WL 1948017] broke no new ground in its Equal Protection analysis. Indeed, it arguably ceded ground by specifically holding that DoMA would be valid under a traditional rational basis test. The court found it unconstitutional because “closer than usual scrutiny” was required, which in turn was triggered because the penalized group was  ”historically disadanvated or unpopular and the statutory justification seemed thin, unsupported or impermissible.” (More detailed analysis of the opinion itself coming in a later post.)

Whatever the First Circuit’s reasoning – and you can be sure the Supreme Court will feel no need to conform its analysis to the approach of any lower court – the most important aspect of this decision is that it sets up Supreme Court review without further delay. There are only six judges on the First Circuit; a unanimous decision by three of them means that there is no chance that a majority would vote to accept a petition for rehearing en banc. 

So it’s on to the Supremes. And I am quite happy that this case (originally called “Gill”, but now consolidated with the state’s challenge to DoMA, so Massachusetts has become the lead plaintiff) will get there before Perry v. Brown, which might lead to a ruling on the constitutionality of all state laws banning same-sex marriage. I do not see this Court, with these nine Justices, issuing such a decision.

This particular lawsuit challenging DoMA does have one major drawback as a Supreme Court vehicle, though. When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court (as I noted almost two years ago and as she did in a DADT case).

Her recusal will mean that the best case scenario is probably a 4-4 tie in the Supreme Court, which would leave the First Circuit decision in place. For that tie to happen, though, Justice Kennedy has to join the three progressives on the Court (Ginsburg, Breyer, Sotomayer) in finding DoMA unconstitutional. If he does, DoMA’s fate is sealed, since I would be willing to bet something precious that Justice Kagan will vote to strike down DoMA in a subsequent case from which she is not recused. If on the other hand Justice Kennedy votes to uphold DoMA, the game is over.


10 Responses to DoMA heads to Supreme Court…minus Kagan

  1. Sam June 3, 2012 at 3:45 PM

    I disagree. I’ve thought about this. The Solicitor General’s office does not get involved in a case until deciding whether to appeal a District Court’s opinion against the federal government. Kagan was nominated to the Court on May 10, 2010. Judge Tauro ruled against DOMA on July 8, 2010. As soon as she was nominated (and even preemptively with something like the healthcare case) she would’ve begun removing herself from deliberations within her office. She should be participating in this case when it arrives.

  2. Nan Hunter June 3, 2012 at 3:55 PM

    That’s true in the typical case, but this wasn’t a typical case. There were lots of discussions within the Justice Department about which arguments it should make in Gill, long before Judge Tauro ruled. I don’t have firsthand knowledge of Justice Kagan’s involvement, but I would be very surprised if she didn’t participate. In any event, I have no doubt that she will do the right thing ethically, so we will know by the fall what the answer is.

  3. Rick June 3, 2012 at 10:17 PM

    I’m also unsure if Kagan will or should recuse herself in the Gill case. There is no higher court to appeal the refusal of a SCOTUS Justice to recuse himself or herself in a particular case. By all indications, Kagan’s involvement in the Gill case, if any at all, was no greater than her involvement in the health care litigation, so if Kagan did not recuse herself in the health care case, then it’s doubtful if she will conclude that her recusal is required in the Gill case.

    • Nan Hunter June 4, 2012 at 12:26 PM

      What indications are you referring to?

  4. Stefan June 3, 2012 at 10:58 PM

    Regarding Perry v Brown, most are saying that it’s unlikely the 9th will grant an en banc hearing, thus paving the way for it to be heard in this next term alongside the DOMA case. However, a per the 9th Circuit ruling, Perry v Brown is no longer about a constitutional right to marry. Instead it simply upholds Romer v Evans. Actually, I think with the DOMA case bound for the Supreme Court this term, combined with the narrow ruling in Perry v Brown, there is a good chance that the Supreme Court will refuse to hear the latter.

    • Nan Hunter June 4, 2012 at 12:27 PM

      I hope you’re right.

  5. daftpunkydavid June 3, 2012 at 11:11 PM

    2 comments/questions:

    ** Baker was mentioned in the court’s analysis… does the fact that DOMA now exists imply that there is therefore a federal question now, which was not the case at the time of baker?

    ** “If on the other hand Justice Kennedy votes to uphold DoMA, the game is over.”
    but isn’t that the case whether kagan recuses herself or does not?

    • Nan Hunter June 4, 2012 at 12:31 PM

      As to your second point – Yes, game over if we don’t get Kennedy’s vote, with or without Kagan.
      As to Baker – The Court’s ruling that there was no substantial federal question meant that the federal constitutional challenge to the exclusion of gay couples from marriage was, in that Court’s view, not even a substantial question. In other words, they didn’t consider it worth their time to discuss whether gay couples have a right to marry. The existence of DOMA isn’t relevant to that point.

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