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DOMA: In Windsor v. USA, House Republicans move to dismiss DOJ appeal

DOMA trials Windsor

By Scottie Thomaston

Thanks to Kathleen for these filings

In Windsor v. USA, the plaintiffs filed a petition for certiorari to the Supreme Court and while they await the Justices’ consideration of the petition and their decision on whether to review the case, the case has been appealed to the Second Circuit as well. If the Justices agree to review the case, the Second Circuit appeal won’t go on. There are two appeals to the Second Circuit in Windsor – by the Justice Department and by the Bipartisan Legal Advisory Group (BLAG) defending the law on behalf of House Republicans. As expected, BLAG is moving to dismiss the Justice Department’s appeal on the grounds that it’s “superfluous” and the Justice Department “lacks standing” because their side won in the lower court. (This is a move BLAG has made in every appeal thus far.)

BLAG suggests that “the Executive Branch plainly lacks standing to appeal the judgment entered below because, far from being aggrieved by that judgment, the Executive Branch got exactly what it sought” because the Justice Department has changed its position on the constitutionality of Section 3 of DOMA. The lower court struck that law down as unconstitutional, though under reasoning that differed from the Justice Department’s arguments.

BLAG argues that the DOJ appeal is remarkable because “it serves no purpose whatever (aside from sowing confusion)[.]” The DOJ’s legal position is incorrect, they say, because, “The very disturbing legal implication of DOJ’s position – that the House cannot pursue its appeal unless DOJ permits it to – is that DOJ has the power effectively to preclude the judicial branch of the federal government from determining the constitutionality of an Act of Congress by (i) first refusing to defend the Act’s constitutionality, and (ii) then withholding or withdrawing its commitment to “provid[e] Congress a full and fair opportunity to participate in the litigation.” Holder Letter at 6.”

In her letter in reply to the motion, Edith Windsor takes no position on the motion to dismiss DOJ’s complaint. She does ask for the court to keep its expedited briefing schedule.


  • 1. Bob  |  July 24, 2012 at 11:37 am

    off topic but interesting,,,, Some Austrian hospitals stop allowing circumsion of babies,,, siting abuse

  • 2. Sagesse  |  July 24, 2012 at 11:54 am


  • 3. Mike in Baltimore  |  July 24, 2012 at 7:00 pm

    So let me get this correct:

    Ms. Windsor is suing the US (meaning DoJ), so DoJ, as defendant, cannot defend itself in court because the DoJ has announced that it will not defend a specific portion of a specific law? And even when the defendant has stated that it will enforce the law until the case is determined by a court of competent jurisdiction in which there is no appeal sought or there is no opportunity of appeal?

    And Ms. Windsor won her case at District Court, so the defendant (DoJ) cannot appeal the verdict?

    I thought the rule was that the plaintiff AND/OR the defendant could appeal, although it is unusual for the 'winner' in court to appeal. But DoJ cannot appeal, because it has announced it will not defend a specific portion of a specific law?

    Or is BLAG stating that the appeal should not go to the Court of Appeals for the Second District, but to some other court, therefore that is why the court should not accept the defendant's appeal?

    Let me guess – most of the attorneys for BLAG went to Liberty and/or Regent Law School, or no law school.

    Or does BLAG believe in the theory of 'heads I win, tails you lose'?

  • 4. Critical Mass Progress | &hellip  |  August 7, 2012 at 8:21 am

    […] appeals are “superfluous” because BLAG’s appeal is all that is required.) BLAG moved to dismiss DOJ’s […]

  • 5. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:30 pm

    […] Bipartisan Legal Advisory Group (BLAG) who is defending Section 3 of DOMA for House Republicans, had asked the court to dismiss the Justice Department’s appeal in the case, and the Justice Department opposed […]

  • 6. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:34 pm

    […] Republicans moved to dismiss the Justice Department’s appeal in Windsor v. USA a couple weeks ago, arguing that it is […]

  • 7. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 3:37 pm

    […] the other. In that case, BLAG has appealed along with the Justice Department, and BLAG subsequently moved to dismiss the Justice Department’s appeal, as it has continued to do in these challenges. Oral argument […]

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