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House Republicans continue to press dismissal of claims made in Aranas v. Napolitano, challenging Section 3 of DOMA

DOMA trials

By Scottie Thomaston

The Justice Department filed “procedural” and partial motions to dismiss in Aranas v. Napolitano, opposing the dismissal of the equal protection challenge against Section 3 of the Defense of Marriage Act but supporting dismissal of the plaintiffs’ due process claims as well as their sex discrimination claims and, as the case is a class-action lawsuit against Section 3 of DOMA as applied to immigration, opposing the plaintiffs’ motion to certify as a class.

The Justice Department has been arguing that Section 3 of DOMA is an unconstitutional violation of equal protection principles, singling out same-sex couples and treating them differently from opposite-sex couples. But the Justice Department has opposed plaintiffs’ due process challenge, because they say no ‘fundamental right’ is at stake – the plaintiffs would essentially, according to the Justice Department, be arguing that there is a fundamental right to government benefits, when the Supreme Court has held otherwise.

In a new filing, the Bipartisan Legal Advisory Group (BLAG), who has been defending Section 3 of DOMA on behalf of House Republicans, respond to the Justice Department’s motions by asking the court to deny their “procedural” motion to dismiss, and to grant their partial motion to dismiss – the due process and sex discrimination arguments.

BLAG argues there would be serious constitutional issues with granting the “procedural” motion to dismiss, because the implication is that Congress would not have the power to step in and defend laws when the Justice Department decides not to. They suggest it would in effect make the executive branch “gatekeepers” of the entire proceedings, and they write that allowing an opposing party to do that would have serious repercussions.

And while BLAG is still alone in contending that Section 3 of DOMA is constitutional under equal protection principles, they, too, want the court to dismiss the due process and sex discrimination challenges.

h/t Kathleen for this filing

8:12-cv-01137 #58


  • 1. Straight Ally #3008  |  October 18, 2012 at 2:57 pm

    If I could have an immature moment, "BLAG" sounds like the acronym of some supervillain group.

  • 2. SoCal_Dave  |  October 18, 2012 at 5:24 pm

    I suppose it would be pronounced the same as the French word "blague" which means "joke" and seems entirely appropriate.

  • 3. davep  |  October 18, 2012 at 3:31 pm

    I always thought it sounded like industry slang for some kind of nasty industrial byproduct created during some filthy manufacturing process. "Hey, get down in there and clean that BLAG out of the intake pipes! And be sure to wear a mask! Trust me, you don't want to be breathin' that stuff!".

  • 4. davep  |  October 18, 2012 at 8:27 pm

    Hi all,

    I just got back from listening to Ted Olson speak at the Commonwealth Club in SF about the Prop 8 trial, today's DOMA ruling in the Windsor case, and lots more. As you might have guessed, it was great! Lots of insights into the beginnings of the case, how & why he got involved and all the stuff they had to do to prepared for the first trial etc. He also mentioned some general plans for what AFER will be doing after the Prop 8 trial (more marriage equality trials in other states and other Circuits Courts). Then his thoughts on where the Prop 8 trial is now and what we might expect moving forward, although of course he didn't make any bold predictions.

    With one possible exception – Maybe it's just me, but until now, I had gotten the impression that the chance of SCOTUS granting cert and hearing the Prop 8 case were very very slim. They only hear about 1% of the cases brought to SCOTUS, the 9th circuit ruling was intentionally made quite narrow to reduce the chance of the case being perceived as containing important federal questions etc… And again, maybe it's just me, but the phrasing Olson was using tonight seemed to indicate that he thought the chance of SCOTUS granting cert was significantly higher than what I had been reading from all the various legal sources.

    And I have now heard two reputable sources, one being Ted Olson tonight, say that they expected SCOTUS to probably make the announcement about granting or denying cert on November 26th, for what that's worth (of course you can never really predict what SCOTUS will do).

  • 5. Gregory in SLC  |  October 18, 2012 at 10:19 pm

    thx for the report : ) Nov. 26th….not so far away…. hope he's right!

    Glad AFER will stay involved post prop8…wonder if Ted Olsen will help with other cases as well?

  • 6. SHOES THROWER  |  October 28, 2012 at 11:15 am

    Maybe by filing amicus briefs in existing marriage equality cases like the one in the Tenth Circuit.

  • 7. Kathleen  |  October 19, 2012 at 2:14 pm

    November 26th makes sense. That would be the first Monday after the November 20th Conference.

  • 8. SHOES THROWER  |  October 28, 2012 at 11:14 am

    <blockqwuote>They only hear about 1% of the cases brought to SCOTUS
    I suspect this is because 99% of cert petitions would require the Supreme Court to overrule its prior precedents for the petitioners to ultimately prevail.

    When a state statute is struck down by a lower court on federal constitutional grounds, the Supreme Court has typically granted review if this was the first time such a statute was struck down, even in the absence of a Circuit split and even in a gay rights context. See e.g. Board of Education v. National Gay Task Force, 470 U.S. 159 (1985) (hearing constitutional challenges to Oklahoma law allowing teachers to be fired for public homosexual conduct), Romer v. Evans, 517 U.S. 620 (1996) (hearing constitutional challenge against state law prohibiting anti-discrimination protections for homosexuals, but not those for heterosexuals)

    This general principle was followed in the context of other fields of legislation, such as flag desecration, Texas v. Johnson, 491 U.S. 397 (1989), assisted suicide, Washington v. Glucksberg, 521 U.S. 702 (1997), and restrictions on fair housing laws, Reitman v. Mulkey, 387 U.S. 369 (1967)

  • 9. SHOES THROWER  |  October 27, 2012 at 9:45 pm

    It should be noted that the Supreme Court had held that "it is important to underscore the limited scope of judicial inquiry into immigration legislation. [The Supreme] Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. See Fiallo v. Bell, 430 U.S. 787 at 792 (1977) (internal citations omitted) Their cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control…."Congress regularly makes rules that would be unacceptable if applied to citizens." id.

    Thus, in an immigration context, no form of heightened scrutiny would be warranted. Indeed, the only two courts to have considered the merits of a DOMA immigration challenge upheld DOMA in this context.

  • 10. Prop 8 Trial Tracker &raq&hellip  |  January 2, 2013 at 12:02 pm

    […] Legal Advisory Group (BLAG) tasked with defending Section 3 of the Defense of Marriage Act (DOMA) have been pushing to get Aranas v. Napolitano dismissed. Aranas is a class-action challenge to Section 3 of DOMA as […]

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