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

DOMA trials Pedersen

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


  • 1. devon  |  September 28, 2012 at 12:50 pm

    Although it appears some DOMA lawsuits are on a fast track for supreme court consideration, the pace still seems unnervingly slow.

  • 2. Mike in Baltimore  |  September 28, 2012 at 1:57 pm

    "Windsor was listed for the September 24 conference, but no action has been taken."

    So, if in conference on September 24, SCOTUS decided NOT to take the case, or to delay taking the case, that means no action has been taken?

    Maybe a better way to phrase what you posted is "no KNOWN (outside the members of the conference) action has been taken" or "SCOTUS has not announced what action, if any, has been taken".

  • 3. John  |  September 28, 2012 at 6:37 pm

    GURL Um we will not know more until probably Monday Oct 1st if the SCOTUS DENIED cert. or RE-LISTED it on a later conference.

  • 4. Mike in Baltimore  |  September 28, 2012 at 10:05 pm

    So if on September 24, 2012 SCOTUS decided to not take the case (i.e. refused to grant cert), it is considered 'no action' until SCOTUS announces it?

    Just because WE don't know, does that mean NO ONE (including all SCOTUS Justices) knows, or that some sort of action was NOT taken?

    Or maybe SCOTUS relisted the case for a later conference, that automatically means that NO action was taken (even if SCOTUS decided to consider the case at a later date?) that means NO ACTION was taken, because SCOTUS has not made a public announcement?

    When my brother and I were growing up, we were staying at an Aunt's place for a period of time. We both went to her, yelling 'Can we? Can we?'. Our aunt responded, "Yes you can, but no you may not." That incident taught me that sometimes words have VERY precise meanings, and a person should NOT mis-use those words. "[N]o action has been taken" is one such example. No action that we know of has been taken, but that does NOT mean no action has been taken.

  • 5. Kyle  |  September 30, 2012 at 12:27 pm

    Oh STFU. You're going from thread to thread throwing a hissy fit over wording because you clearly resent all the advancements being made in terms of GAY RIGHTS and the millions of us who will work with every fiber of our being to attain gay rights. Moreover, you live in Baltimore…a vile town filled with crime, thugs and crime. Focus more on that than polluting our site with all the wonderful gay rights progress we're seeing on a daily basis.

  • 6. John  |  September 30, 2012 at 4:26 pm

    Guuurl you betta check yo self! Sashay shantay!! lol

  • 7. guest  |  September 30, 2012 at 12:29 pm

    Your aunt sounds as pretencious and annoying as you. A better way SHE could have expressed herself is "no, you can't stay here" instead, she wanted to sound like a psuedo intellectual, passing on that pompous gene on to you. Much to the entertainment of everyone around you who makes fun of you for it.

  • 8. Mike in Baltimore  |  October 1, 2012 at 12:43 pm

    First of all, it wasn't only HER house, but also her parents. That Aunt was blind (from birth), never married, and didn't leave the house she grew up in until after BOTH her parents (my paternal grandparents) had died.

    Second, my brother and I were staying at that house because our mother was on a honeymoon with our step-father (our father had died more than 8 years prior), and our mother had given our Aunt and grandparents very strict instructions on what we could, and couldn't do while we were staying at their house, and one of those instructions was that we were NOT to 'overnight' at any other relative's house (we wanted to stay at an uncle's house, who lived about 15 miles away), and my brother and I didn't know about all the instructions, as they wouldn't apply if the situation didn't come up.

    Third, my brother and I were 10 and 11 years of age at the time.

    Fourth, our Aunt saw the opportunity to teach us the difference between the meanings of two words that most people use interchangeably, but in doing so, they use the words VERY incorrectly.

    Fifth, if you don't know the details of the situation, maybe you should NOT open the mouth with stupid accusations and assertions.

    But I guess in your world, if someone steals $1000 dollars from your bank account, but you don't know they stole it, the theft has not occurred, correct?

  • 9. Mike in Baltimore  |  October 1, 2012 at 10:25 pm

    One more thing, 'guest':

    "pretencious" ??

    Checking at, I find:
    "No results found for pretencious:
    Did you mean pretentious"[?]

  • 10. Ron  |  September 28, 2012 at 5:49 pm

    So where do we go from here?

  • 11. Lymis  |  September 29, 2012 at 8:23 am

    How is BLAG paying for this? My understanding was that they were voted a limited role and a limited budget in a single case, and they're taking that as a mandate to spend all the taxpayer dollars they want on any case they want.

    How is this legal?

  • 12. Reformed  |  October 1, 2012 at 5:26 am

    bridges to nowhere and teapot museums pale in comparison.

  • 13. davep  |  September 30, 2012 at 3:14 pm

    Some BREAKING NEWS from California – last night, Governor Brown signed Senate Bill 1172, which outlaws the harmful and bogus quackery known as "conversion therapy" for minors. This type of fraudulent and sadistic fake treatment can no longer be performed on any minor in California. It could only be done if the 'patient' is a legal adult and gives THEIR OWN consent.

  • 14. Ann_S  |  September 30, 2012 at 3:41 pm

    Hooray! Thanks for sharing the news, DaveP!

  • 15. Reformed  |  October 1, 2012 at 5:32 am

    Its Monday morning! Supreme Court certs should be out before I get out of the shower head for the workplace!

  • 16. James A. Tuttle  |  October 1, 2012 at 6:30 am

    Well I'm waiting…

  • 17. bythesea  |  October 1, 2012 at 6:38 am

    I wonder if they are waiting until 10 this week?

  • 18. James A. Tuttle  |  October 1, 2012 at 6:41 am

    I can't imagine they are as there is a note right on the SCOTUS front page saying they changed the release time to 9:30. I doubt we'll get any significant information but I'm just excited to see when they have rescheduled for…I think thats the key date. hopefully.

  • 19. bythesea  |  October 1, 2012 at 6:41 am

    Bah, nothing today.

  • 20. Leo  |  October 1, 2012 at 6:41 am

    No, the order has been published. Neither Perry nor Windsor are mentioned.

  • 21. Sagesse  |  October 1, 2012 at 6:46 am

    Just received an email from AFER:

    "I’ll keep this brief—the U.S. Supreme Court has still not made a decision about whether it will review AFER’s challenge to Proposition 8.

    "News outlets and legal scholars are speculating that we might not hear from the Supreme Court until around Thanksgiving, when all the cases challenging the so-called Defense of Marriage Act (DOMA) will be eligible for consideration by the Justices."

  • 22. Stephen  |  October 1, 2012 at 1:04 pm

    Does this mean that because there is no denying of the Cert that the SCOTUS will hear arguments on the Prop 8 case? I'm confused about what the delay actually means!

  • 23. Prop 8 Trial Tracker &raq&hellip  |  November 8, 2012 at 10:02 am

    […] Advisory Group (BLAG), defending Section 3 of the Defense of Marriage Act for House Republicans, appealed the district court’s decision in Pedersen v. Office of Personnel Management in late September, a month after the Justice […]

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