As we previously blogged last year (Illinois Passes Civil Union Law), the Obama Administration has advised its Attorney Generals not to defend the Defense of Marriage Act ("DOMA") in court. However, until now, there has been no official petition by the Obama Administration to the U.S. Supreme Court to strike down the law.
This week, the Obama Administration filed two petitions for review, both seeking to strike down DOMA as unconstitutional. One of the petitions filed in the Ninth Circuit case Golinski v. Office of Personnel Management seeks the unusual review by the Supreme Court prior to a decision from the Ninth Circuit Court of Appeals.
The Obama Administration’s position can be summarized in the classic Supremes song "Everybody’s Got the Right to Love" (in case you were wondering about the title of this blog). If the Supreme Court strikes down DOMA, it will have an impact on employers, mostly related to benefits that may have to be provided if you are in state that recognizes same sex marriage or civil unions.
The stage seems to be finally set for a good old-fashioned shoot-out since the Bipartisan Legal Advisory Group of the United States House of Representatives also recently filed a petition for a writ of certiorari seeking review of the First Circuit’s decisions in the Commonwealth of Massachusetts v. Department of Health & Human Services and the Gill v. Office of Personnel Management cases.
It will be interesting to see if the Supreme Court takes up the challenge and grants any of the petitions. If they do take it, expect an epic oral argument, especially since this is an election hot button issue. The GOP has brought out the gunslinger Paul Clement to act as lead counsel. If the Solicitor General rises to the challenge, it might just be the legal version of a shoot-out at the O.K. Corral.