August 5, 2013
Since the Supreme Court issued its ruling striking down Section 3 of the federal Defense of Marriage Act (DOMA) in United States v. Windsor in June, House Republicans have steadily backed out of their legal defense for the statute. They have also withdrawn arguments in favor of the constitutionality of similarly-worded statutes that use the opposite-sex definition of “marriage” and “spouse” for purposes of military benefits and immigration.
However, until last week, House Republicans – through the Bipartisan Legal Advisory Group (BLAG) – had remained involved in a longstanding challenge to DOMA and Oklahoma’s ban on marriage equality. A federal district court is hearing Bishop v. United States (formerly Bishop v. Oklahoma) where the plaintiffs are making broad constitutional arguments challenging Section 2 of DOMA and Oklahoma’s marriage ban. Because of Windsor, there is no longer a dispute over the constitutionality of DOMA Section 3. In a new filing, BLAG requests withdrawal from the case. The filing suggests that Windsor resolves the question of Section 3’s constitutionality, but then cites its past briefs on the question of whether the district court has jurisdiction in this case.
In another DOMA challenge now taking place in the Court of Appeals for Veterans’ Claims, BLAG is also seeking withdrawal. In Cardona v. Shinseki, challenging Section 3 of DOMA as well as other military-related statutes, BLAG suggests that while Windsor resolves the question of Section 3’s constitutionality, the constitutionality of those other statues related to military benefits for spouses is still in debate. BLAG questions whether this specialized court can review the constitutionality of those statutes even as it notes it will refuse to defend them in light of Windsor.
In addition to these, there has been a new development in Dragovich v. Department of Treasury, which has been on appeal to the Ninth Circuit Court of Appeals. Kathleen Perrin writes:
Both the federal government (“DOJ”) and intervenor-defendant House Republicans (“BLAG”) appealed to the 9th Circuit a district court judgment in plaintiffs’ favor. On July 19, parties filed a joint request to dismiss the BLAG appeal and have BLAG withdraw from the DOJ appeal. That request was granted July 22.
In the remaining DOJ appeal, the DOJ has submitted a motion which acknowledges that Windsor “conclusively resolves the claims of plaintiffs in same-sex marriages, and the federal government has no further intent of pursuing that issue on appeal.”
However, as relates to unmarried domestic partners, the DOJ points to changed circumstances – namely that these couples can now get married in California – and asks the 9th Circuit to “vacate the district court’s judgment with regard to unmarried plaintiffs in domestic partnerships” and remand the case back to the district court to consider the impact of the new circumstances on the case. (Document #18 attached)
The DOJ motion states that plaintiffs agree to the motion, but plaintiffs have filed a clarification that, while agreeing to remand, they do not agree with the feds’ statement that [all] “domestic-partner plaintiffs in this case now can get married, should they choose to do so.”
That filing is here
BLAG does not appear to be involved in anymore challenges to Section 3 of DOMA, so these motions for withdrawal formally wrap up their defense, since February 2011, of DOMA.
Thanks to Kathleen Perrin for these filings