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House Republicans withdraw motion to dismiss the DOJ’s appeal in DOMA challenge Pedersen v. OPM

DOMA trials Pedersen

By Scottie Thomaston

The Bipartisan Legal 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 Department had appealed the case. Both parties have continued to file appeals in these cases to ensure that the case can legally be heard before the court: a party to the case has to be ‘aggrieved’, and there are also questions of legal standing for an ‘advisory group’ of Congress. The Justice Department has been arguing that BLAG’s standing as a legal advisory group is questionable under existing Supreme Court precedent, while BLAG has countered, in previous cases at least, that since the Justice Department got what it wanted in the district court ruling (Section 3 of DOMA was struck down) it doesn’t have legal standing to appeal a favorable ruling. (The Justice Department has said that since the Executive Branch is tasked with enforcing Section 3 of DOMA until the Supreme Court issues a final ruling, and the district court’s order prevents that from happening, it does indeed have standing.

And so, BLAG has typically asked courts to dismiss the Justice Department’s attempts to appeal district court decisions in these cases. And BLAG continues to be denied those requests: courts have consolidated the two appeals and treated them as one.

But on October 25, in Pedersen, BLAG withdrew its motion to dismiss the Justice Department’s appeal. It’s one less road block and procedural step for the Second Circuit to take before it decides Pedersen. The opening brief is scheduled for November 27, a week after the Supreme Court will have its conference to decide whether it will hear challenges to Section 3 of the Defense of Marriage Act and Prop 8. If the Court hears a challenge to Section 3 of DOMA, which is exceedingly likely, the case may be stayed pending final resolution of the constitutional question, even before the first brief is filed.


  • 1. PDx_Str8_Supporter  |  November 8, 2012 at 1:28 pm

    WA was just called!

  • 2. Seth from Maryland  |  November 8, 2012 at 1:34 pm

    marriage equality opponents concede in Washington

  • 3. Sagesse  |  November 8, 2012 at 1:43 pm

    These people have no shame. They've been touting the Prop 8 victory for years: 52.24% to 47.76%. I'm looking at the Politico page for Washington which shows 52% to 48%. Yet Protect Marriage Washington wants you to know they only lost by a 'narrow margin'. As the LGBT community in California knows only to well, a majority is a majority and a loss is a loss.

    Or, as the old saying goes, 'Close only counts in horseshoes and grenades.'

  • 4. PDx_Str8_Supporter  |  November 8, 2012 at 6:24 pm

    WA will end up 53/47 (maybe even 54/46) when all is said and done.

    They are still counting the ballots and King County (Seattle) is 66% approval and they have over 35% of the remaining ballots to count.

  • 5. Anthony  |  November 8, 2012 at 6:52 pm

    Yup, we won! So proud of my country.

  • 6. Mark  |  November 8, 2012 at 8:24 pm

    Yes, this will win by the largest margin of the 4 marriage measures from the election.

  • 7. Mike in Baltimore  |  November 8, 2012 at 9:37 pm

    You forgot it's not too good if you are even near where a nuclear bomb goes off.


  • 8. Sagesse  |  November 8, 2012 at 1:49 pm

    Florida has also been called (by some, anyway). Obama 332, Romney 206.

  • 9. Gregory in SLC  |  November 8, 2012 at 2:16 pm

    : D !

    found this too….Romney camp will NOT request recount:

  • 10. Bob  |  November 9, 2012 at 12:28 pm

    still waiting for the final count though??????? right???

  • 11. davep  |  November 8, 2012 at 4:45 pm


  • 12. Peter Morak  |  November 9, 2012 at 11:48 am

    <img src=""/>By the way, i guess i missed yesterday's big story, so basically everything is now a go in Washington? <img src=""/&gt;

  • 13. W. Kevin Vicklund  |  November 9, 2012 at 12:57 pm

    Yep, December 6th, wedding bells will be ringing.

  • 14. PDx_Str8_Supporter  |  November 9, 2012 at 2:33 pm

    Well, Dec 6, licenses will be purchased – Dec 9th is when the church bells will be a ringing.

  • 15. Mike in Baltimore  |  November 13, 2012 at 12:12 am

    Does Washington state have 'an out', where a state official (Governor, state judge, etc.,) can waive the waiting period?

    I know New York has one, and I'm pretty sure California has one.

    If so, it could be December 6. If not, then it's December 9.

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