An Unusual Move } Government Asks Court For Faster Review of The Case Of Gay Discrimination (includes Marriage)
The Justice Department made the unusual request to the Ninth U.S. Circuit Court of Appeals in San Francisco, which is considering the constitutionality of the Defense of Marriage Act, the 1996 law that denies federal benefits to same-sex spouses.
U.S. District Judge Jeffrey White declared the law unconstitutional Feb. 22, calling it an irrational act of discrimination. He ordered the government to allow Karen Golinski, a federal court attorney in San Francisco, to enroll her wife in a federal family insurance plan.
Lawyers hired by House Republican leaders, who have defended the law since President Obama switched sides a year ago, have appealed White's ruling to a three-judge panel of the Ninth Circuit.
But Obama's Justice Department asked the full appeals court Monday to bypass the customary three judges and convene an 11-judge panel.
That procedure would not only expedite the case - the larger panel is the last step before Supreme Court review - but also enable the court to set a stricter standard for laws that deny equal treatment. The panel could overturn the circuit's 1990 ruling allowing such laws to be upheld if they have any rational justification.
Adoption of a more demanding standard, like those used to scrutinize laws based on race or sex, would increase the likelihood of future rulings declaring a right to same-sex marriage. California's Proposition 8, which banned such marriages in 2008, was struck down by a Ninth Circuit panel in a 2-1 ruling last month, but sponsors of the initiative are seeking review from an 11-judge panel.
Bob Egelko is a San Francisco Chronicle staff writer. begelko@sfchronicle.com
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