The unanimity of the First Circuit’s ruling that DoMA is unconstitutional virtually insures that a cert petition to the Supreme Court will 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.