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Updates on two pending challenges to Section 3 of DOMA within the Second Circuit

DOMA trials Windsor

By Scottie Thomaston

At the Second Circuit last week, Section 3 of the Defense of Marriage Act was struck down under equal protection principles in Windsor v. USA. Notably, all of the states under the Second Circuit’s jurisdiction have legalized same-sex marriage. The court in this case also applied a heightened form of judicial scrutiny – called intermediate scrutiny – to cases in which gays and lesbians are singled out as a class. The decision to strike down Section 3 of DOMA and to apply heightened scrutiny are now precedent at the Second Circuit, where previously the question of the level of scrutiny for classifications based on sexual orientation had not been decided. The losing side could ask the full panel of Second Circuit judges for a hearing en banc to rehear the challenge, or the Supreme Court could stay the Second Circuit’s decision if it decides to take up one of the many DOMA cases.

But for now the case is having an impact on some of the other challenges to Section 3 of DOMA within the Second Circuit. In Roe v. Empire Blue Cross Blue Shield, a lesbian employee of a Catholic hospital is suing for her spousal benefits. Recently the briefing schedule was set in the case. Now, the plaintiffs have noted to the district court judge their intent to file a preliminary injunction declaring that the defendants can no longer deny the plaintiffs their spousal benefits, following the Second Circuit’s decision in Windsor v. USA. The plaintiffs have asked for a pre-motion conference on the injunction and the judge will hold that conference November 1. If the preliminary injunction is granted, it means that the plaintiffs will be allowed to receive their spousal benefits while the case is proceeding. Usually preliminary injunctions aren’t granted unless the plaintiffs can show a likelihood of success on the merits of the case.

Another challenge to Section 3 of DOMA is at the Second Circuit. Pedersen v. Office of Personnel Management is on appeal there with opening briefs due in late November. The plaintiffs in that case had initially asked the court to expedite their case and hear it alongside Windsor but they were refused the request. It would seem to make sense that the plaintiffs in this case would file a letter asking the court to take notice of the Windsor opinion, but it’s unclear if anything beyond that would happen.

Both Windsor and Pedersen are awaiting a Supreme Court conference to determine whether the Justices will hear challenges to Section 3 of DOMA. Both cases were sent to the Court before judgment at the court of appeals. The final responses to the petitions in challenges to Section 3 of DOMA were due to be filed by the Justice Department and plaintiffs in various cases this past Friday. There was no conference on Friday – the next will be October 26. Orders from that conference are expected to be released the following Monday, but as usual, no one is sure if any of the DOMA cases, the Prop 8 case, or the Arizona domestic partner benefits case will be taken up at Friday’s conference.

h/t Kathleen for this filing

Letter in Roe noting the opinion in Windsor:7:12-cv-04788 #20


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