The Supreme Court is likely to review lower courts’ actions striking down the Defense of Marriage Act (DOMA) as soon as its next term.
On June 29, the Bipartisan Legal Advisory Group of the U.S. House of Representatives asked the Supreme Court to review the First Circuit’s panel decision in Massachusetts v. HHS, which declared unconstitutional the definition of marriage under DOMA. Earlier this week, the Obama Administration requested Supreme Court review in the same case, as well as expedited review in a case invalidating DOMA currently on appeal to the Ninth Circuit (Golinski v. Office of Personnel Management).
DOMA reaffirms that for the purposes of federal law, the term marriage means only the legal union of one man and one woman as husband and wife, regardless of how any states might choose to redefine the institution of marriage under state law. It was enacted into law in 1996 with broad bipartisan support in both houses of Congress and signed by President Clinton. The executive branch successfully defended DOMA’s constitutionality for 15 years, including during the Obama Administration’s first two years.
In an abrupt reversal of course in February 2011 (and with litigation over the constitutionality of DOMA pending), the Administration notified Congress that it would no longer defend the law, forcing the House to retain outside counsel to do so. Two former Attorneys General have expressed concern over the “extreme and unprecedented” nature of the Obama Administration’s reversal, observing that its actions “have the practical effect of nullifying an Act of Congress,” thereby abdicating a part of the President’s constitutional obligation to “take care that the laws be faithfully executed.”
In a cert petition in Massachusetts v. HHS, lawyers for the House argue that Supreme Court review is warranted precisely because the Administration has forgone its constitutional duty to defend DOMA. In its cert petition in Golinski, the Administration urged the Court to bypass normal Ninth Circuit review of a California federal district court’s decision to nullify DOMA and grant cert.
Because these cases involve federal courts’ nullification of an act of Congress, the Supreme Court will almost certainly review them, with a decision expected before the Court recesses for summer in 2013.