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

DOMA trials Pedersen

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


  • 1. devon  |  September 4, 2012 at 12:31 pm

    A major concern for me is the affect an expected Romney election would have on all the DOMA cases.
    The republican has pledged to defend DOMA numerous times and I assume that he would order the DOJ to adhere to his anti gay position when he takes office in jan. 2013.
    If the supreme's decide to hear DOMA cases in the upcoming session, would the DOJ's new orders to defend DOMA cause the cases to be delayed or send back to the circuit courts?

  • 2. David Henderson  |  September 4, 2012 at 12:51 pm

    Since the Office of Personnel Management is still also a party to this case (and other federal governmental agencies are in the other cases), the defense of these federal agencies does fall to the Justice Department. And just as the JD stopped defending the cases, they could just as easily start again.

    There would be no need to start any case over. At most, the Justice Department may seek a delay to file its own responses and arguments.

    A related question: If Obama is re-elected, and the House turns Democratic, what happens to these cases? Presumably neither Obama nor the House would want to defend them, and nobody else would have standing to appeal.

    If the Supreme Court hears the case after January 20, 2013, would they then appoint an attorney to defend the position that neither party now holds?

  • 3. devon  |  September 4, 2012 at 1:11 pm

    I also expect BLAG to implement whatever delaying tactics are available to it, in anticipation of a Romney election.
    BLAG was already granted a month long extension to respond in the Golinski case.
    The longer the republicans can drag out the judicial process, the less chance of arguments happening before Romney is sworn in.
    DOJ's decision to stop defending DOMA caused all federal cases to be basically put on hold for many months. That would make a DOMA decision in the upcoming session unlikely.

  • 4. Mike in Baltimore  |  September 4, 2012 at 1:30 pm


    Please stop ASSuming a Romney victory, and basing posts on that ASSumption.

  • 5. Larry  |  September 4, 2012 at 2:23 pm

    It's worth considering the possibility of Romney winning. It would be shortsighted to assume Obama would win either, and we should be prepared for either case. That's especially true in areas like immigration, where the President could tell INS to reject all same-sex green card petitions immediately and start deporting people, while a more generous President could tell them to keep the applications on hold, but at least to offer the spouses work authorization and no threats of deportation.

    If DOMA and/or Prop 8 cases have already been argued at SCOTUS, I would guess that wouldn't change anything since the cases would only be awaiting a decision. I suppose it's possible SCOTUS could ask for a re-argument, it's happened with other cases like Citizens United, albeit for very different reasons.

  • 6. Mike in Baltimore  |  September 4, 2012 at 5:21 pm

    Yes, it is worth considering that Romney might win.

    However, if you read Devon's posts on this subject, EACH and EVERY post begins by ASSuming that Romney will win.

    Devon treats a Romney victory as a given. And that is what I was addressing because it is NOT a given that Romney will win.

  • 7. Eric  |  September 5, 2012 at 8:10 am

    Parties to a lawsuit can't change their position mid-trial. It's one of those were you lying before or lying now, kind of things that judges don't like.

  • 8. Kathleen  |  September 5, 2012 at 10:18 am

    Yes, they can. Parties do it all the time; the DOJ did iit in some of the DOMA cases. A changed interpretation of the law isn't the same as lying (presumably about facts).

  • 9. Sagesse  |  September 4, 2012 at 4:59 pm

    Folks, take a breath. DOMA has been defended by BLAG, and has still been ruled unconstitutional every step of the way. The DOJ deciding to defend it may delay things, but it won't change the outcome, unless Romney manages to appoint a couple of Supremes in the meantime, and maybe not even then.

    Not that a Romney/Republican win would not be umpteen kinds of disastrous for civil rights in general, and LGBT rights in particular, but DOMA is in a lot of trouble that will not be easy to reverse.

  • 10. Kathleen  |  September 5, 2012 at 10:20 am

    Nan Hunter: "What Would Romney @ Justice Look Like?"

  • 11. Mike in Baltimore  |  September 6, 2012 at 3:08 pm

    One thing to remember is that Robme is for something one interview, and against it the next.

    On this issue, though, I think he's made his last position change, and will do his utmost to make sure the GLBT community is forced out of the political discussion.

    All the more reason for people to not become complacent, get off their duffs and vote FOR President Obama and downticket Democrats on November 6.

  • 12. Prop 8 Trial Tracker &raq&hellip  |  September 20, 2012 at 9:31 pm

    […] Second Circuit to expedite the process of appeal so the case will be reviewed faster, but the court rejected that motion, without […]

  • 13. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 3:34 pm

    […] 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 […]

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