In new filing, Justice Department offers more support of its request for a stay of DOMA case Aranas v. Napolitano
January 17, 2013
By Scottie Thomaston
The Justice Department opposes the complete dismissal of Aranas v. Napolitano, a class-action challenge to Section 3 of the Defense of Marriage Act brought by binational couples. This is something that House Republicans have pushed for, through the Bipartisan Legal Advisory Group (BLAG) which is defending Section 3 of DOMA. The plaintiffs have also opposed dismissing their case.
But the Justice Department has asked for a stay of the proceedings, since United States v. Windsor is before the Supreme Court and could decide the issue of the constitutionality of Section 3 of DOMA. They claim it would be a waste of judicial resources to continue the case when the constitutional issue could soon be resolved. Plaintiffs oppose the stay, listing the harms they would face as binational couples (like separation from family members and lack of employment opportunities) and pointing out that since the Court added questions to be briefed and argued on whether they even have jurisdiction to hear the DOMA case, it could mean the merits won’t get resolved.
In a new filing, the Justice Department hits back, writing that in order to be considered unlawfully present in the country, a plaintiff would have to leave and re-enter the United States. Since no one plans to leave and come back, they argue, no one would be harmed by the penalties for unlawful presence. And regarding employment opportunities, the Justice Department suggests that none of the plaintiffs have indicated they are looking for employment. They write that the plaintiffs only offer “generalized” statements about harms. And they suggest that “hypothetical emotional distress” doesn’t meet the standard that there is a likelihood the plaintiffs would suffer irreparable harm.
Last, they reiterate that Windsor will be decided in just a few months, and it “will decide the issue before this Court. As a result, Plaintiffs’ status will be resolved in the near future.”
h/t Kathleen for this filing