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Requests filed to halt proceedings in several DOMA cases pending Supreme Court conference this week

DOMA trials Pedersen

By Scottie Thomaston

With the Supreme Court conference on the eight petitions related to challenges to Section 3 of the Defense of Marriage Act as well as Proposition 8 and Arizona’s denial of domestic partnership benefits to same-sex spouses approaching on Friday, the lower courts are busy with requests to delay arguments or stay cases related to Section 3 of DOMA pending possible Supreme Court review. If the Court takes up one (or more) of the cases, it will effectively decide the outcome of the others currently winding through the district and circuit courts. The Bipartisan Legal Advisory Group (BLAG), tasked with defense of the law, has begun requesting cancellation of oral arguments in some cases and stays in others. The Justice Department, though it agrees that Section 3 of DOMA is unconstitutional, is doing the same.

In Cardona v. Shinseki, a challenge to Section 3 of DOMA, as well as another statute related to military benefits, by a military servicemember, oral argument was set for November 15 at the appeals court, in this case the US Court of Appeals for Veterans’ Claims. The case has been on an expedited track – sped up by the government’s decision to stop defending Section 4 of DOMA. (In this case, they are not defending the other statute at issue here, either.)

Secretary Shinseki then requested rescheduling oral argument to November 29, facing objections from Cardona, the plaintiff. Despite the fact that the case is on an expedited track, the judge granted that motion.

On November 8, BLAG filed a motion to postpone oral argument in the case (opposed by the plaintiff) and the judge has granted the order. Cardona, in her opposition, argued that, “(1) the Court expedited this matter and has previously granted a motion to postpone oral argument, (2) regardless of whether the Supreme Court grants certiorari in a case involving DOMA, her case involves the constitutionality of 38 U.S.C. ยง 101(31), which this Court must still address, (3) BLAG was aware of the pending petitions for certiorari when the Court set oral argument for November 29, (4) it is uncertain when the Supreme Court will announce its decision to grant or deny certiorari on these petitions, and (5) further delay will burden her because she already has requested time off from work and purchased non-refundable airplane tickets to attend the November 29th argument, and the continued deprivation of spousal benefits causes an economic hardship on her family[.]”

But the judge agreed that the Supreme Court is likely to resolve the issue of the constitutionality of Section 3 of DOMA, and in the interest of “judicial efficiency” the argument is canceled. The judge suggested that the case may be stayed once the Supreme Court decides on whether to review Section 3 of DOMA and releases orders from its November 30 conference: “if the Supreme Court grants a petition for writ of certiorari, this case may also be stayed pending the issuance of its decision considering the constitutionality of DOMA.”

Pedersen v. Office of Personnel Management is currently pending at both the Second Circuit Court of Appeals and at the Supreme Court on a petition for a writ of certiorari before judgment, and the Justice Department is asking the court to suspend the briefing schedules and hold the case in abeyance pending a decision by the Supreme Court on whether to hear challenges to Section 3 of DOMA. In this case, BLAG consents to the request, while the plaintiffs do not oppose the request insofar as it would hold the appeal in abeyance pending whatever happens at the November 30 Supreme Court conference. However, plaintiffs “oppose holding these appeals pending final resolution by the Supreme Court if the Supreme Court were to grant one or more of the petitions filed in any of the cases challenging the constitutionality of Section 3 of DOMA.”

If the Court does decide to hear challenges to the constitutionality of Section 3 of DOMA, we are likely to see many more of these requests.

h/t Kathleen as usual for these filings

ORDER – Cardona:11-3083 #177

DOJ request – Pedersen:12-3273 #109

1 Comment

  • 1. Kathleen  |  November 29, 2012 at 8:46 am

    The 2nd Circuit has suspended the briefing schedule in Pedersen, pending a cert decision by SCOTUS. If cert denied, the case continues. Even if cert granted, it doesn't automatically halt the case.

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