Equality On Trial

Ninth Circuit sends Dragovich back to district court

November 5, 2013

LGBT Legal Cases Marriage equality Marriage Equality Trials

The Ninth Circuit Court of Appeals has vacated a part of a district court’s earlier decision in a case challenging Section 3 of the federal Defense of Marriage Act (DOMA) as well as the exclusion of same-sex couples from California’s long-term care plan for state employees. The appeals court is sending the case back to the federal district court to examine its record on the effects of the California program on same-sex domestic partners in light of legal development since the appeal.

The district court ruled initially in Dragovich v. Department of the United States Treasury in May 2012. The Justice Department and House Republicans, through the Bipartisan Legal Advisory Group (BLAG) filed subsequent appeals. The Supreme Court reviewed the issue of the constitutionality of DOMA Section 3 and issued its decision in Windsor in June of this year. Once the Supreme Court struck down Section 3 of DOMA, BLAG withdrew its appeal. (BLAG was only in the case to defend DOMA.)

The Justice Department then asked the appeals court to vacate the section of the district court judge’s decision dealing with same-sex domestic partners and send the case back to the district court, and the plaintiffs largely agreed; however, the plaintiffs in the case disagreed with the Justice Department’s contention that the domestic partners in the case can now get married, since same-sex marriages have resumed in California after the Supreme Court’s decision in Hollingsworth v. Perry and the Ninth Circuit’s lifting of the stay on the federal court’s mandate. The plaintiffs pointed out that “Some class member couples may be living out of state. Some may be in registered domestic partnerships with persons who are not able to marry due to a mental or physical impairment that impairs consent to marriage. Some may have been in registered domestic partnerships, and their partners have died during the partnership.

Further, some domestic-partner class member couples may choose not to marry, or not to marry immediately, and may yet have constitutional claims. Some domestic-partner class member couples who now can and do marry may seek remedial relief for their past exclusions. There may be additional constitutional questions.”

The appeals court’s order will allow the district court to consider “subsequent legal developments, including the Supreme Court’s subsequent decisions in United States v. Windsor, 133 S. Ct. 2675 (2013), and Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), as well as the resumption of marriage licenses for same-sex couples in California.”

Thanks to Kathleen Perrin for these filings

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