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

DOMA trials Pedersen Windsor

By Scottie Thomaston


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

DOJ response to plaintiffs’ petition in Pedersen:12-231 #3

Edith Windsor’s response to DOJ petition in Windsor:12-307 #3

BLAG response to DOJ petition in Windsor:12-307 #4

BLAG response to DOJ petition in Pedersen:12-302 #3

BLAG response to plaintiffs’ petition in Pedersen:12-231 #4


  • 1. devon  |  October 23, 2012 at 1:54 pm

    A 4-4 tie would affirm the appeals court ruling but it would apply only to that circuit, I've read.
    So DOMA would be unconstitutional in those states only if that makes any sense.

  • 2. davep  |  October 23, 2012 at 2:23 pm

    … that sounds like a pretty good reason for SCOTUS to pick a different case to grant cert. I would think they would want very much to avoid the possibility of that situation.

  • 3. Kathleen  |  October 23, 2012 at 4:34 pm

    Just to be clear, recusal only applies to specific cases, not an entire issue. So, the Court could grant cert in the Massachusetts cases and, as long as it also grants cert in one or more of the other DOMA cases, the problem of Kagan's recusal goes away. That is, even if Kagan recuses herself from the Massachusetts cases, she could still vote on any other DOMA cases the Court decides to hear. So it's not a situation of the Court having to not choose the Mass. cases, only that it needs to choose at least one other as well.

  • 4. Bill S.  |  October 23, 2012 at 4:50 pm

    Kathleen: What is your take on the question of scrutiny? Which way will the Supreme Court rule? Will they say that DOMA fails even rational basis so there is no need to determine the question of scrutiny at this time, or do you think they will once and for all determine that intermediate or strict scrutiny is required?

  • 5. Matt N  |  October 23, 2012 at 7:51 pm

    Yes, it seems like a waste of the court's time to take only Gill if they think Kagan will recuse herself. That would leave the 2nd circuit and future 9th circuit decisions as is, and create a ruling for only the 1st circuit. Depending on how the rulings are worded, it could mean DOMA has 4 different effects (in the 1st, 2nd, 9th, and remaining circuits). What a mess!

    Eventually SCOTUS would have to hear a second, probably identical DOMA case, which wastes their time.

  • 6. Stefan  |  October 23, 2012 at 11:15 pm

    Who says Kagen would even have to recuse herself? Neither she nor Thomas did so on the healthcare reform case even though many said they should.

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