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Federal judge stays Cardona v. Shinseki, challenging Section 3 of DOMA, pending Supreme Court review of Windsor

DOMA trials

By Scottie Thomaston

The judge hearing Cardona v. Shinseki, challenging Section 3 of the Defense of Marriage Act as it applies to military benefits, postponed arguments in the case in late November when the Supreme Court was expected to decide whether it would take up one of the challenges to the law. And we we wrote:

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.”

Now the Court has granted a DOMA case, and the court has issued an order staying the case pending the outcome of Windsor. The judge writes:

As noted in previous orders, the constitutionality of DOMA, as well as 38 U.S.C. § 101(31) [defining ‘spouse’ for purposes of military benefits], are the central issues in the instant appeal. Because the resolution of Windsor is likely to impact the instant appeal, it is [ordered that the case is stayed.]

As other judges and filings have noted, the definitions in the two provisions are substantially the same. And since the issue of which level of scrutiny should apply to laws classifying gays and lesbians will also play a role and affect how these types of statutes are reviewed, the outcome of the Supreme Court case will have an impact on this case and others.

h/t Kathleen for this filing

11-3083 #179


  • 1. karen in kalifornia  |  December 19, 2012 at 2:03 pm

    Are all these stays a stall tactic? Feels that way. If each of these cases can't proceed on their own it puts EVERYTHING on the outcome of the Windsor case doesn't it?

  • 2. Mike in Baltimore  |  December 19, 2012 at 3:12 pm

    Looks like this is a case of "they're similar, so they are the same."

    It's similar to a poster on another site who suggested to end the dispute surrounding marriage equality, marriage licenses issued to heterosexual couples be titled 'marriage licenses' and those issued to same sex couples be titled 'marriaje licenses'. The poster suggested it be a temporary measure, but won't state if the limit should be 1 year, 10 years, or 50 years, or some other time frame.

    As I've been telling that poster for over three weeks now, marriage similarity is NOT the same as marriage equality, and that, in effect, the proposal is equivalent to 'separate but equal'. The other poster keeps claiming that since I didn't specify what is separate, the two spellings are equal. And the poster makes it VERY clear that she will not do any research on the term 'in effect', as she claims to know the definition of 'effect'.

    The stupid (in my opinion) proposal is coming from someone who claims to be a supporter of the GLBT community. With 'friends' like that, I don't think the GLBT community needs enemies.

  • 3. Eric  |  December 19, 2012 at 7:49 pm

    The court doesn't seeit as a stall tactic, just a way to delay making a decision until SCOTUS gives some guidance.

  • 4. Larry  |  December 20, 2012 at 8:36 am

    None of these stays are stall tactics. For the DOMA cases, if the Supreme Court rules DOMA unconstitutional in Windsor, the newer cases aren't necessary. If the Supreme Court rules DOMA constitutional, presumably the newer cases would go the same way. If the Supreme Court doesn't decide on the merits because BLAG doesn't have standing, then the lower courts could presumably just give the plaintiffs a quick victory since no one is defending the law, at least potentially until 2017.

    It's the same for the state gay marriage cases. If The Supreme Court gives a broad ruling in the Prop 8 case that states have to allow same sex marriage, that makes the Nevada and Hawaii cases moot. If the Supreme Court says that Prop 8 is constitutional or that Baker v Nelson is still valid, presumably the Hawaii/Nevada cases would go the same way. Really the only way the Supreme Court wouldn't directly control the lower cases would be if they affirm the Ninth Circuit decision that Prop 8 is unconstitutional, but only in a narrow way that only applies to California. Then the Nevada/Hawaii cases would have to proceed on their individual merits.

    On top of this, there's the indirect question of what level of scrutiny is appropriate. If the Supreme Court decides that in either Windsor or the Prop 8 case, that would play a huge role in how lower courts decide any future challenges. So the lower courts do have a legitimate reason to hold off deciding any new cases until June when the Supreme Court will presumably offer a lot of new guidance. It saves the court time and resources, as well as for the lawyers on both sides, which saves their clients money as well.

  • 5. SoCal_Dave  |  December 19, 2012 at 5:40 pm

    Off topic, but I think interesting…
    Todd "legitimate rape" Akin has turned his attention to repeal of DADT, which he basically wants to revisit and weaken. And McCain, who I once had some respect for, is all for it.

  • 6. Steve  |  December 19, 2012 at 6:40 pm

    Nothing new. He tried similar crap a couple of times already.

  • 7. Stefan  |  December 19, 2012 at 6:56 pm

    And each time the Republicans in the House attempt this, the Senate rejects it. This time will be no different.

  • 8. Joel  |  December 23, 2012 at 1:37 am

    you once had respect for McCain? he's been pretty vocally anti gay so I'm curious when that was?

  • 9. SoCal_Dave  |  December 23, 2012 at 9:23 am

    Yeah, I didn't mean to imply that this issue is what caused loss of respect for McCain. He lost any respect I had for him a long time ago.
    He once was known for standing up to fellow republicans and for reaching across the aisle to work with Democrats on *some* issues. More recently he went against other republithugs and did the right thing, defending John Kerry against the swiftboaters. For those reasons I once gave him a little bit of grudging respect. But that's all ancient history.
    Agree, his record on gay rights is, and as far as I know has always been, pretty dismal.

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