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Filed under: Pedersen

Responses to remaining DOMA petitions contain note from DOJ suggesting it will take further action in light of Second Circuit decision in Windsor

By Scottie Thomaston

Updated

Before last week’s Second Circuit Court of Appeals decision in Windsor v. USA, Edith Windsor’s legal challenge to the constitutionality of Section 3 of the Defense of Marriage Act, the case had already been petitioned to the Supreme Court, where Windsor’s lawyers asked the Court to decide her case. The Justice Department then filed its own petition.

In Windsor and another challenge to Section 3 of the Defense of Marriage Act, Pedersen v. Office of Personnel Management, responses to the various petitions were due from the parties to the case on Friday.

The Justice Department’s response to the plaintiffs’ petition in Pedersen asks the Court to hold the petition and grant it only if no other challenges to Section 3 of DOMA are appropriate for the Court’s review. However, the petition does have a note related to the recent Second Circuit decision in Windsor v. USA:

On October 18, 2012, the Second Circuit in Windsor issued a decision applying intermediate scrutiny to hold that Section 3 violates equal protection. 2012 WL 4937310. The government plans to take further steps to seek this Court’s review in Windsor in light of that decision.

So it seems that in Windsor, we can expect some action to be taken now that the Second Circuit has ruled. Whether it will be a new petition for review or something else is unclear at this point. The Court only has the petition to review the district court decision right now, before judgment at the court of appeals. That decision lacks relevance now that the appeals court has issued binding precedent in the circuit.

Also in Pedersen, the Bipartisan Legal Advisory Group (BLAG), defending the law for House Republicans, filed replies in opposition to the Justice Department’s petition and to the plaintiffs’. BLAG makes many of the same arguments it has made throughout the litigation: there are legal standing issues present, and, in the Justice Department’s case, their status as a party is unclear.

In Windsor itself, Edith Windsor’s lawyers’ response to the Justice Department’s petition for certiorari to the Supreme Court agrees with the Justice Department that the case should be reviewed, but Windsor’s lawyers take issue with the “tiered” way in which the Justice Department asked the Court to handle the various petitions in DOMA cases. The Justice Department had asked the Court to consider reviewing Windsor only if none of the other challenges to Section 3 of DOMA are appropriate for the Court’s review. The Justice Department claimed that the unique issues of ‘legal standing’ related to Windsor’s Canadian marriage presented a side issue the Court would have to resolve if it heard the challenge; also, the Justice Department noted that the district court in Windsor applied only rational basis review to strike down Section 3 of DOMA and the Justice Department wants to present the Court with all possible options, including the heightened scrutiny holding that was present in the district court’s opinion in Golinski v. Office of Personnel Management.

Regarding the fact that the district court did not apply heightened scrutiny, Windsor’s lawyers write that the holding “in no way prevents this Court from addressing the heightened scrutiny issue if it concludes that reaching that question is necessary.”

The filing, which was written after the oral argument at the Second Circuit but before a decision was reached, cites the oral argument transcript suggesting that the judges were skeptical that Windsor lacked standing because of her Canadian marriage. The judges were quick to point out that the lower courts in New York had uniformly recognized those marriages as legal at the time. And indeed, in its decision, the Second Circuit decided not to ‘certify’ the question to the New York Court of Appeals because that court had already suggested it was not inclined to decide the issue; the Second Circuit went on to ultimately say (with all three judges concurring on the point) that Windsor did have legal standing to bring the challenge.

Windsor’s lawyers ask the Court to hear the case, and not to delay it as the Justice Department suggested.

The Bipartisan Legal Advisory Group (BLAG) also filed their response to the Justice Department’s petition in Windsor. BLAG filed its own petition in Gill after judgment at the First Circuit Court of Appeals, and they continue to push the Court to grant only their petition.

They argue that since there is at least one pending petition after judgment at the court of appeals it would not make sense to go through a series of procedural steps and deal with all sorts of procedural issues just to get the case properly before the Court. They argue that standing presents a hurdle, the parties to the case would have to be properly re-aligned, and the extent of the Justice Department’s involvement would have to be decided on. BLAG continues to believe that the Justice Department is operating as a “de facto amicus” and there is no reason to consider them a real party to the case (the Justice Department wants Section 3 of DOMA ruled unconstitutional, as the plaintiffs do, so BLAG argues that the Justice Department is not an ‘aggrieved’ party. In this particular feud, the Justice Department has countered in other instances by noting that they represent the Executive Branch, who is in charge of enforcing all laws; with a ruling forbidding them to do that, the Justice Department says, they’re sufficiently ‘aggrieved’.)

Because of all these extra issues BLAG suggests would be present, they again ask the Court to deny this petition and grant their Gill petition. (One note: there is a serious question about the Gill case, namely that Justice Kagan has suggested at her confirmation hearings that she may recuse herself from the case. If the Court grants only the Gill petition, and Justice Kagan recuses herself, the outcome of the decision is unclear. If Justice Kennedy were to side with the four more moderate Justices, that would still result in a 4-4 split, affirming the First Circuit’s ruling but not creating any nationwide precedent.)

With a promised move by the Justice Department forthcoming, it seems likely the Supreme Court will have another appeals court decision to consider when it decides later this month or sometime in November whether to take up any challenges to Section 3 of the Defense of Marriage Act.

h/t Kathleen for these filings (more…)

16 Comments October 23, 2012

House Republicans appeal DOMA case Pedersen v. OPM to Second Circuit

By Scottie Thomaston

Until now, only the Justice Department appealed Pedersen v. Office of Personnel Management to the Second Circuit. The court has scheduled their opening brief for November 27. In these cases challenging the constitutionality of Section 3 of the Defense of Marriage Act, the Justice Department has stopped defending the law and House Republicans have stepped in; because of this, both of those parties dispute the other’s legal standing to appeal the decision below, and both parties file appeals to ensure that the court has the right to even decide the merits of the constitutional challenge in the case.

Both the House and the Justice Department (on behalf of the Executive Branch defendants) claim to have the right to appeal the judgment below. The Executive Branch, though it supports a ruling holding that Section 3 of DOMA is unconstitutional, is barred from its duty to enforce the law because of the court’s judgment entered below. And House Republicans suggest they have a right to defend the law they passed.

The Bipartisan Legal Advisory Group (BLAG), which represents House Republicans, has now filed its notice of appeal in the case.

The plaintiffs, Gay and Lesbian Advocates and Defenders (GLAD), who filed the initial challenge, had asked the Second Circuit to expedite the proceedings in the case so that it would track the proceedings in the other Second Circuit challenge to the constitutionality of Section 3 of DOMA, Windsor v. USA. The court denied that motion, so although oral arguments were heard yesterday at the Second Circuit in Windsor, this case is on a slower track.

Pedersen and Windsor were also petitioned to the Supreme Court for review before judgment at the appeals court by GLAD and the Justice Department. Windsor was listed for the September 24 conference, but no action has been taken.

h/t Kathleen for this filing

3:10-cv-01750 #122

25 Comments September 28, 2012

Second Circuit schedules appellants’ opening brief in Pedersen v. OPM

By Scottie Thomaston

The Second Circuit has scheduled the appellants’ opening brief in its appeal in Pedersen v. OPM, challenging Section 3 of the Defense of Marriage Act. The order says that the brief will be filed November 27. In this case, the Bipartisan Legal Advisory Group (BLAG), who has been defending the law, has not yet filed its appeal of the district court decision striking down Section 3 of DOMA. The Justice Department is representing the Executive Branch defendants, though, and they appealed the judgment below.

The plaintiffs had asked the Second Circuit to expedite the process of appeal so the case will be reviewed faster, but the court rejected that motion, without comment.

Pedersen is also at the Supreme Court on petition for a writ of certiorari before judgment by plaintiffs and the Justice Department, where it is awaiting a conference to determine whether the Court will review Judge Bryant’s decision. That conference should take place sometime in October, possibly October 26.

If the Supreme Court decides not to review Pedersen, the case could continue in the Second Circuit, or the Court could hold it pending review of another challenge to Section 3 of DOMA.

belated h/t to Kathleen for this filing

12-3273 #48

5 Comments September 20, 2012

Justice Department seeks Supreme Court review in two more challenges to Section 3 of DOMA

By Scottie Thomaston

The Justice Department has filed its own petitions for certiorari before judgment in two more challenges to Section 3 of the Defense of Marriage Act. Those cases are Office of Personnel v. Pedersen, brought by Gay and Lesbian Advocates and Defenders (GLAD) and Windsor v. USA, brought by the ACLU and NYCLU. Both cases are also currently on appeal to the Second Circuit Court of Appeals. The Justice Department had filed earlier petitions for Supreme Court review in the Golinski case and in Gill/Massachusetts.

In its new filing in Pedersen, the Justice Department explains that while the question of whether Section 3 of DOMA violates the equal protection principles implicit in the Fifth Amendment “warrants this Court’s review now,” the Court “should hold this petition pending its consideration and disposition of the petitions in Massachusetts and Golinski.” The filing notes that if the Court were to grant either of those petitions, there would be no need to review the new filings in Pedersen or Windsor at all, since the same questions are addressed and the Court would have all it needs to resolve the constitutionality of Section 3 of DOMA.

But the filing points to the district court judge’s thorough evaluation of the proper level of judicial scrutiny required for classifications based on sexual orientation. The George W. Bush-appointed district court judge in Pedersen, Vanessa Bryant, ultimately decided that Section 3 of DOMA fails under the most relaxed form of judicial scrutiny, rational basis review, but not before undertaking a fairly lengthy analysis of the history of discrimination against gays and lesbians, the question of whether homosexuality is immutable, the political power that gays and lesbians have demonstrated, and the other factors laid out by the Supreme Court in determining whether a classification of people is ‘suspect’ and should be reviewed under a more searching judicial inquiry. The Justice Department suggests the lower court’s analysis could materially assist the Supreme Court, should it decide that issue requires resolution.

Since the plaintiffs were the prevailing party in the court below in these cases, the Justice Department says, there is a “threshold question” whether plaintiffs, who obtained a district court judgment and decision entirely in their favor, have appellate standing to seek certiorari before judgment.” But the judgments entered in those cases were against the Executive Branch, so the Department’s petitions erase the need to address that question, as the Executive Branch “plainly” has legal standing to petition the Supreme Court for certiorari before judgment.

Ultimately, the Justice Department suggests, if the Supreme Court chooses not to grant the petitions in those prior cases, it should grant their petition in Pedersen or Windsor.

In the Windsor petition, the Justice Department notes that the case presents an additional hurdle: whether Edith Windsor has legal standing to pursue her claims since she was married in Canada. There is a question whether New York law would have recognized her marriage as legal (and the Bipartisan Legal Advisory Group (BLAG), tasked with defending Section 3 of DOMA on behalf of House Republicans, have asked the Second Circuit to certify that question to the New York Court of Appeals.)

Thus, the Department writes, this petition should be granted only if the Court declines to review Golinski and Gil>/Massachusetts, and if it decides that Pedersen is not an appropriate vehicle to review the constitutionality of Section 3 of DOMA.

h/t Kathleen for these filings

DOJ cert petition in Pedersen:DOJ-Cert Petition_Pedersen

DOJ cert petition in Windsor v. USA:12-307 #1_DOJ Petition

8 Comments September 12, 2012

Second Circuit won’t expedite Pedersen v. OPM, challenging Section 3 of DOMA

By Scottie Thomaston

The plaintiffs in Pedersen v. Office of Personnel Management, a Second Circuit Court of Appeals case challenging Section 3 of the Defense of Marriage Act, asked the court recently to expedite their case so it can be heard with the same three-judge panel that will hear Windsor v. USA. Arguments in Windsor are scheduled for September 27.

The Second Circuit has denied, without comment, the request to expedite the Pedersen case.

In the Pedersen case, only the Justice Department has appealed the district court’s decision. In these challenges to Section 3 of DOMA, there are usually two appeals: one from the DOJ and one from the Bipartisan Legal Advisory Group, defending the law on behalf of House Republicans. Since BLAG and the DOJ continue to dispute the legal Article III standing of the opposing party, both have continued to remain parties to litigation challenging Section 3. The Justice Department is, of course, no longer defending Section 3 of DOMA, since it believes laws classifying gays and lesbians should be subject to a heightened form of judicial scrutiny, and Section 3 of DOMA fails that heightened scrutiny; however, as part of the Executive Branch tasked with enforcing all laws, the Justice Department believes it has standing to appeal, as a judgment that Section 3 is unconstitutional would bar enforcement of the law and impede Executive Branch duties. The Justice Department does not believe that BLAG, as a “legal advisory” group for a Congressional body, has Article III standing to appear in federal court.

BLAG believes that the DOJ appeal is “superfluous” and that it does indeed have standing to appear properly in federal court. So it has typically appealed lower court judgments holding that Section 3 of DOMA is unconstitutional. But in this case, it has not yet appealed.

BLAG has instead filed a motion seeking an order by the court recognizing BLAG as a party in the appeal. The motion was denied, but the court suggests that BLAG, as a losing party in the judgment below, has every right to file an appeal seeking reversal of the district court decision (that struck down Section 3 of DOMA.) BLAG has 60 days after entry of judgment to file an appeal. That would be October 1.

Also, in Pedersen, at the Supreme Court, the Justice Department has noted (in a separate filing in the Windsor case at the Supreme Court) that it will be filing its own petition for certiorari asking the Court to review the Pedersen case. That filing could come at any time.

h/t Kathleen for these filings

Order denying motion to expedite:12-3273 #27

BLAG motion asking the court to recognize it as a party:12-3273 #24

Order denying BLAG’s motion:12-3273 #39

18 Comments September 4, 2012

Plaintiffs in DOMA case Pedersen v. OPM ask the Second Circuit to expedite the appeal

By Scottie Thomaston

Pedersen v. Office of Personnel Management is on appeal to the Second Circuit Court of Appeals, since the Justice Department has appealed the case. The plaintiffs, Gay and Lesbian Advocates and Defenders (GLAD), have petitioned the Supreme Court for a writ of certiorari to review the lower (district) court’s decision.

While awaiting a decision on whether the Supreme Court will take up the case – likely to be announced at the beginning of October – the plaintiffs are asking the Second Circuit to expedite the appeal so that it can be heard by the same three-judge panel as Windsor v. USA, among other reasons. The Bipartisan Legal Advisory Group (BLAG), who is defending the law, has asked the appeals court to suspend oral argument in that case, however, and whether or not they will suspend it is unknown. Another appeals court, the Ninth Circuit, did halt oral argument in a challenge to Section 3 of DOMA, Golinski v. OPM, after the Justice Department petitioned the Supreme Court for a writ of certiorari in the case.

The plaintiffs list four reasons the appeals court should expedite the case: (1) the plaintiffs face ongoing harms from de jure discrimination, (2) expediting the appeal would allow it to be heard by the same panel hearing Windsor, and both involve the legal issue of the constitutionality of Section 3 of DOMA, (3) the district court’s opinion did a thorough examination of the standard of review applied to classifications of sexual orientation, and since there is no precedent in the Second Circuit on the level of scrutiny that should be applied in these cases, the lower court’s examination would be really helpful, and (4) BLAG would not be unduly burdened by an expedited appeal; Windsor is already on an expedited schedule anyway, so, they argue, there is no reason for this case to move on a slower track.

h/t Kathleen for this filing

(The argument for an expedited appeal begins on page 113.)
12-3273 #9

6 Comments August 23, 2012

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