By Scottie Thomaston
On September 14, the Bipartisan Legal Advisory Group (BLAG), who has stepped in to defend Section 3 of the Defense of Marriage Act after the Justice Department determined the law is unconstitutional under a heightened form of judicial scrutiny that should be applied to laws that classify on the basis of sexual orientation, filed its motion to dismiss Aranas v. Napolitano (a class-action DOMA challenge as applied to immigration.) Their brief was over the size requirements for these motions, so they requested leave to file an oversized brief. The judge rejected their request, so they have tried, repeatedly, to re-file almost the exact same request, and it continues to be rejected.
Given that a response to the motion is due, and plaintiffs are unsure which arguments they are responding to (as the filed motion was rejected), the plaintiffs are asking the judge “for an order continuing hearing on intervenor-defendant Bipartisan Legal Advisory Group’s (BLAG) motion to dismiss (Dkt. 37) until after the Court has ruled on defendants’ pending motion to dismiss, or in the alternative, until 30 days following either the Court’s granting BLAG leave to file an oversize brief or BLAG’s filing a brief in support of its motion to dismiss within the page limit fixed by Local Rule 11-6.” Essentially, the plaintiffs are saying they need extra time to respond to BLAG’s motion to dismiss because they don’t yet know which arguments the judge is accepting.
They write that, “Fundamental fairness requires that plaintiffs have fair notice of what arguments they must answer and a reasonable time to answer them.”
BLAG filed a motion opposing any effort to give the plaintiffs more time. They dispute the timeline as told by the plaintiffs, and they write that, “[…]Plaintiffs have not been prejudiced by the fact that this Court has not yet accepted for filing the House’s memorandum in support of its motion to dismiss.” And, because the oversized brief was filed, “[p]laintiffs have known exactly what arguments the House will make for more than three weeks.”
The Justice Department had previously filed a motion opposing class certification and a preliminary injunction barring deportation of the plaintiffs and those similarly situated (as it would mean a nationwide injunction against the Executive Branch performing its constitutional obligations), but reiterating that its position is that Section 3 of DOMA is an unconstitutional violation of equal protection under a heightened form of judicial scrutiny.
They have now filed an opposition to BLAG’s motion to dismiss the plaintiffs’ equal protection claims. They argue what they have said all along: gays and lesbians fit squarely within the criteria the Supreme Court has laid out as a guide for which groups warrant heightened judicial scrutiny. Gays and lesbians face a long history of discrimination by federal, state, and local governments, as well as private discrimination. Homosexuality, they write, bears no relation to their ability to contribute to society. Gays and lesbians are relatively politically powerless. And, though it isn’t a necessary hurdle to jump over, homosexuality is an immutable characteristic. Since laws classifying gays and lesbians warrant heightened judicial scrutiny, Section 3 of DOMA fails that test, and the case should not be dismissed, they write.
UPDATE: The judge has issued an order granting some of the requests for oversized briefs, denying others, and setting a newer schedule: “BLAG shall file on or before October 22, 2012 a Memorandum of Points and Authorities in Support of its Motion to Dismiss that is no more than 30 pages in length, excluding exhibits and indices. Defendants and Plaintiffs shall file their Oppositions to BLAG’s Motion to Dismiss on or before October 30, 2012 and each Opposition shall be no more than 30 pages in length, excluding exhibits and indices. BLAG shall file its Reply, if any, on or before November 6, 2012. Argument on BLAG’s Motion to Dismiss, Defendants’ Partial Motion to Dismiss, and Plaintiffs’ Motions for Preliminary Injunction and Class Certification will be heard on November 20, 2012 at 10AM. The November 6, 2012 hearings are hereby vacated”
h/t Kathleen for these filings
Filings and orders on BLAG’s requests for oversized briefs are here.
DOJ opposition to motion to dismiss:8:12-cv-01137 #51
Plaintiffs’ application for continuance:8:12-cv-01137 #52
BLAG’s opposition to request to continue:8:12-cv-01137 #53
Judge’s order:8:12-cv-01137 #55