To defend the Defense of Marriage Act, or to leave it alone?
Image by Shannon Stapleton / Reuters
WASHINGTON — President Mitt Romney's administration would face tough decisions on the Defense of Marriage Act during his first month in office, and same-sex couples’ fight for federal recognition is one area where a Romney victory could lead to immediate changes.
Romney has avoided stumping on marriage, abortion, and other "social issues," but questions of policy and law would be harder to avoid in the White House than on the campaign trail.
Ever since President Obama and Attorney General Eric Holder announced on Feb. 23, 2011, that they no longer would be defending the federal Defense of Marriage Act in federal court challenges over the law’s definition of "marriage" and "spouse," many Republicans — including Romney — have highlighted the move as something that would not happen if Republicans controlled the executive branch. Although the Obama administration initially defended the law, Obama decided that the law was unconstitutional after a little more than two years into his time in office.
And now, if Romney were to win the presidency and change course again as he told the National Organization for Marriage he would do, both the lawyers defending and those taking aim at the 1996 law agree that the Supreme Court could be entering uncharted waters.
The Supreme Court has been asked to consider the constitutionality of DOMA’s federal definitions, which bar recognition of same-sex marriages under all federal laws, in four different cases. BuzzFeed, along with others, have reported that the justices are not likely to consider to consider which, if any, of the cases it will hear until weeks after the election, likely Nov. 20, at the earliest. Because one court of appeals already has ruled that the law is unconstitutional, as well as the trial court judges in the other three cases, it is considered very likely that the Supreme Court will take one of the cases.
The federal government’s current position, argued in court by the Department of Justice, is that DOMA’s Section 3 is unconstitutional. The defense of the law has since been taken up by the House Bipartisan Legal Advisory Group (BLAG), which is controlled 3-2 by the House Republican leadership. If Romney wins, the Department of Justice would be overseen by an attorney general picked by Romney after he takes office on Jan. 20. (On the other — less probable — hand, the House leadership could flip to a 3-2 Democratic majority on BLAG earlier in January 2013 if Democrats do the unexpected and take back the House majority.)
If the court were to announce on Nov. 21 that it is taking a DOMA case, then the first brief in the case would be due, under ordinary Supreme Court rules, 45 days later. Because that falls on a weekend, the opening brief would be due Jan. 7 — 13 days before Romney would take the oath of office.
Depending on election outcomes, advocates on all sides of the issue agree that what follows what follows could be quite complicated.
The opening brief generally comes from the party seeking to have the Supreme Court reverse the decision of the lower court. Because the plaintiffs challenging DOMA and the Obama administration agree that the law is unconstitutional, which is what all of the lower courts in the cases have decided, the House Republican leadership is the party most likely to be slated to file the opening brief. If Romney wins, however, questions could be raised about whether the House legal group retains the authority to participate in the case as a party if the Justice Department takes up defense of the law once again.
Paul Smith, who is on the legal team for some of the people challenging DOMA’s constitutionality and argued Lawrence v. Texas on behalf of the gay couple charged with violating Texas’s Homosexual Conduct Law, said today that he was not certain of what the court would do in such a situation.
Because the Obama administration supports the lower court rulings striking down the law, he suspects the court would have the administration file its brief in response to the House Republican leaders' brief, "But that would make their deadline after the inauguration, meaning that a Romney administration might tell them not to file a brief supporting [upholding the lower court ruling]. Whether they would then want to, and be able to, file a brief supporting reversal out of time is hard to say."
Tom Goldstein of SCOTUSblog, a frequent advocate before the Supreme Court, suggested that the court could delay the case altogether. "On the briefing, they would be inclined to reach out to the current [Justice Department] for advice on whether to defer the briefing schedule. What happens then is uncertain." Because the Obama administration already is on record as to its view that the law is unconstitutional, Goldstein believes that "by agreeing to an extension [until the next administration would begin] they aren’t endangering their legacy. So I think as a matter of continuity they would pay a lot of attention to what the incoming administration was able to say about its desires."
The legal director of Lambda Legal, one of the advocacy groups that has challenged DOMA in court, points out that it is not just the Supreme Court who would face questions. Of a Romney administration, Lambda’s Jon Davidson said today, "They would have some hard decisions to make right off the bat if he were elected."
"There’s not much middle ground here that he could stake out," he said, noting that either reversing course or keeping the same course doubtless would dissatisfy significant portions of the country. "There's a question in my mind about whether they would want to take that on in the first week of the new administration." The other lawyers with whom BuzzFeed spoke doubted that possibility, with Goldstein saying there is an "excellent chance that Romney would defend DOMA."
The House Republican leaders' lawyer, Paul Clement, talked with BuzzFeed about the issue at a Cato Institute event on Sept. 18. Of the implications of a Romney win for any DOMA Supreme Court case, Clement said, "I don’t know that there’s a playbook for this. It's a great question, in the sense that it obviously would affect the dynamics somehow, but I just don't think there are enough analogues." Referring to amicus curiae, or friend-of-the-court, briefs — where a non-party to a case informs the court of its views — Clement said, "There’s one or two cases where the government has withdrawn an amicus brief or something like that, but in a case like this, I don’t think there’s a ready analogue."
Regardless of which parties are arguing which position, though, Davidson notes that "the full spectrum of positions are being advanced," a point echoed by the other advocates as well. And, Davidson adds, “[U]ltimately, the court is going to do what it feels is right."
Uncharted though it could be, the four DOMA cases on the Supreme Court's docket await action — and November is looking likely to be a very significant month for beginning to chart that path forward.