July 24, 2012
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.