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Filed under: Pedersen

Breaking: plaintiffs in Connecticut DOMA case file petition seeking Supreme Court review

By Jacob Combs

Gay & Lesbian Advocates & Defenders (GLAD) today asked the Supreme Court to review a lower court decision in the case of Pedersen v. Office of Personnel Management, in which a district court judge struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional.  In her powerful ruling, Judge Vanessa Bryant, a George W. Bush appointee, took apart each proffered defense of DOMA in detail, arguing, “Having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision [DOMA].”

While Judge Bryant’s decision sets up the case for a hearing in the Second Circuit Court of Appeal (where another lower court decision striking down DOMA in the case of Windsor v. USA is also on appeal), GLAD’s filing today asks the Supreme Court to take up the case directly, allowing it to skip the intermediate appellate review stage.  Pedersen now joins Windsor and another district court decision from California (Golinski v. OPM) in petitioning the Supreme Court before an appeals court has ruled on the issue; another case, Massachusetts v. HHS, was argued before the First Circuit Court of Appeal, which issued an unanimous decision striking DOMA down.  In their press release today, GLAD highlighted several reasons in its decision to petition the Supreme Court directly in Pedersen:

Among the arguments GLAD makes in petitioning the Supreme Court for immediate review in Pedersen are:

  •  the case raises a question of national importance;
  • continued delay exacerbates the stigma and economic burdens on plaintiffs’ families and children;
  • Congress has no legitimate interest in overriding state marriage policies where states license marriages and not the federal government;
  • there is a practical need for a Supreme Court decision as there are conflicting decisions on DOMA’s constitutionality in various federal courts and additional challenges are pending;
  • the Obama Administration is not defending the law in court but is still enforcing it, resulting in ever more lawsuits against DOMA; and
  • Pedersen is an exceptionally good case for the Court’s review because it demonstrates DOMA’s impact on a range of important federal programs like federal income tax, Social Security, federal employee and retiree benefits, and federal statutes (e.g. the Family & Medical Leave Act (FMLA) and the Employment Retirement Income Security Act (ERISA).

When the Supreme Court reconvenes in late September for its first conference following the summer recess, the Court will have a whole host of DOMA cases on its plate to consider taking up in its next term.  The Supremes can take up all or none of the cases, or a select group of them.  But because all of the different DOMA cases address the same central issue of discrimination while addressing it with a variety of distinct legal arguments, the inclusion of a case like Pedersen in the Supreme Court’s review makes the case against DOMA even stronger.

You can read GLAD’s full filing with the Supreme Court below, via Scribd.  (H/t to Kathleen for the link.)

[scribd id=103506020 key=key-1bqshfitx4h1uxashael mode=scroll]

17 Comments August 21, 2012

Justice Department appeals Pedersen v. OPM, challenging Section 3 of DOMA, to the Second Circuit

By Scottie Thomaston

Section 3 of DOMA was struck down in Pedersen v. Office of Personnel Management, a case filed in federal district court in Connecticut. The decision came after the Bipartisan Legal Advisory Group (BLAG), who is defending the law, asked the judge to stay the proceedings in the case in light of Windsor v. USA, a case that’s currently on appeal to the Second Circuit. The judge denied the request.

Judge Bryant’s decision struck down the law using rational basis review, but not before analyzing the requirements for a ‘suspect classification’ and coming to the conclusion that laws classifying gays and lesbians should be suspect.

BLAG has not yet filed its notice of appeal to the Second Circuit in Pedersen, but today, the Justice Department – on behalf of federal defendants OPM and others – appealed the decision to that circuit.

Pedersen is one of two cases before the Second Circuit, which has no precedent regarding the level of scrutiny required to review laws classifying gays and lesbians. Windsor is the other. In that case, BLAG has appealed along with the Justice Department, and BLAG subsequently moved to dismiss the Justice Department’s appeal, as it has continued to do in these challenges. Oral argument at the Second Circuit in Windsor will take place on September 27 in New York City. That case is also before the Supreme Court, since Edith Windsor petitioned the Court to review the case.

BLAG will likely file an appeal itself to the Second Circuit in Pedersen soon and may file a motion to dismiss the DOJ appeal.

h/t Kathleen for this filing

3:10-cv-01750 #119

17 Comments August 20, 2012

DOMA ruled unconstitutional in Connecticut case Pedersen v. OPM

By Jacob Combs and Scottie Thomaston

Today, Judge Vanessa Bryant, a George W. Bush appointee to the District Court of Connecticut, struck down Section 3 of the Defense of Marriage Act as unconstitutional today in Pedersen v. Office of Personnel Management, a case brought by Gay and Lesbian Advocates and Defenders (GLAD) in November 2010.  In her ruling, Judge Bryant granted the plaintiffs’ requests for summary judgment and denied a request by the House of Representatives’s Bipartisan Legal Advisory Group (BLAG) to dismiss the suit, writing in her conclusion:

“Having considered the purported rational bases proffered by both BLAG and Congress and concluded that such objectives bear no rational relationship to Section 3 of DOMA as a legislative scheme, the Court finds that no conceivable rational basis exists for the provision [DOMA].  The provision therefore violates the equal protection principles incorporated in the Fifth Amendment to the United States Constitution.”

The Pedersen case, which was filed in 2010, had been fully briefed and awaiting a decision since October of last year. In late June, the Bipartisan Legal Advisory Group (BLAG), who is defending the law on behalf of House Republicans, asked the court for a stay of all proceedings while another DOMA case, Windsor v. USA, was pending appeal in the Second Circuit. Judge Bryant rejected the stay, concluding that stay issued so many months after the case was fully briefed and ready for a decision on the merits would likely harm the plaintiffs.

Judge Bryant’s decision today is an incredibly detailed, powerfully argued take-down of BLAG’s arguments in favor of upholding DOMA as constitutional.  She begins by noting the simple fact that the “impact of DOMA’s definition of marriage is vast” (4) and briefly touching upon the significant facts of the Pedersen case, whose lead plaintiff, Joanne Pedersen, worked for the Department of the Navy in a civilian position for 30 years. Her wife, Ann, has chronic severe medical conditions that Pedersen is unable to cover, simply because she is married to a woman and denied spousal benefits:

“Joanne worries about Ann’s chronic medical conditions—hypersensitivity pneumonitis and asthmatic bronchitis—which cause her breathing difficulties and severe fatigue. In 2008, a flare-up caused Ann, 60, to miss four months of work with recurrent bouts of pneumonia; she was out for about three weeks in the first half of 2009. After she recovered, she worked from home for two months.”

Follow the link for full analysis of today’s opinion. (more…)

24 Comments July 31, 2012

In Pedersen v. OPM, challenging DOMA, judge denies House Republicans’ request for stay of proceedings

By Scottie Thomaston

Updates below

The district court judge in Pedersen v. Office of Personnel Management has issued her order in the case on the Bipartisan Legal Advisory Group’s (BLAG) request for a stay of the proceedings. BLAG asked the judge for the stay because, they suggested, another case that is on appeal to the Second Circuit (Windsor v. OPM) addresses the same issues. The plaintiffs in the case filed their opposition brief on June 22. Judge Bryant of the District Court of Connecticut has ruled against granting a stay, finding that the under the factors the Supreme Court has laid out for consideration of a stay, BLAG has “failed to sustain its burden to establish the need for a stay.” These four factors are: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

Judge Bryant notes that Windsor involves one plaintiff, and that plaintiff’s standing to have her case heard in federal court has been questioned. This could mean that the Second Circuit may only resolve the question of standing.

The judge also writes that when the request for a stay was filed, a decision was already in the process of being drafted: “Moreover, a stay in this matter would not conserve judicial economy, where, at the time the motion to stay was filed, the Court had already reviewed the parties’ pleadings, the law upon which the pleadings relied, had undertaken significant research and analysis, and had begun the process of drafting the decision, expending a substantial number of hours on the matter.”

Most importantly, the judge writes, plaintiffs would be harmed by a stay at this point: “The Court finds that the harm which would befall the Plaintiffs if a stay were to be entered is significant. Entering a stay in this matter would essentially deny the Plaintiffs the right to advocate for their own interests, asking them instead to “stand aside while a litigant in another [case] settles the rule of law that will define the rights of both [parties].””

With this ruling, the judge is free to issue a decision on the merits and could do so at any time.

The filing, via Kathleen:3:10-cv-01750 #114

Gay and Lesbian Advocates and Defenders (who is in charge of this case) has issued a statement:

In denying BLAG’s motion that the pending appeal in the Second Circuit Court of Appeals in the Windsor case made her ruling unnecessary, Judge Bryant cited potential harm to the plaintiffs if the proceedings were halted. “The Court finds that the harm which would befall the Plaintiffs if a stay were to be entered is significant,” she wrote. “Entering a stay in this matter would essentially deny the Plaintiffs the right to advocate for their own interests, asking them instead to ‘stand aside while a litigant in another [case] settles the rule of law that will define the rights of both [parties].’”

“Our plaintiffs are being denied access to vital programs under DOMA, and we’re gratified that Judge Bryant affirmed their right to a resolution of their case,” said Mary L. Bonauto of GLAD, lead counsel in Pedersen. “As long as Jerry Passaro continues to be denied his late husband’s pension; Anne Meitzen continues to be unable to go on her wife Joanne Pedersen’s health insurance, and Lynda DeForge continues to be unable to care for her wife Raquel Ardin because she can’t get Family Medical Leave, this case should be moving forward. Judge Bryant came to the right conclusion.”

The Judge also ruled that there was no harm to BLAG from denying a stay, that staying the case would not preserve judicial economy since the case is fully briefed and the court has already begun drafting a decision, and that it is in the public interest for there to be more opinions and analyses to enrich Supreme Court review, should that review be forthcoming.

18 Comments July 4, 2012

An analysis of the plaintiffs’ opposition to a stay in Connecticut’s DOMA case

By Jacob Combs

In November 2010, two cases were filed challenging the constitutionality of the Defense of Marriage Act.  One, Windsor v. USA, filed in the Southern District of New York, concerned a widow who was denied eligibility for the estate tax marital deduction and was forced to pay over $350,000 to the government after the death of her spouse.  The other, Pedersen v. OPM, was filed on behalf of six married couples who had been denied health care and pension rights because of DOMA.   On June 6, the Windsor court ruled that DOMA was unconstitutional and ordered a tax refund for the plaintiff, Edie Windsor.  But almost nine months after the conclusion of all briefing, no such decision has been issued in the Pedersen case.

On June 20, the House of Representatives’s Bipartisan Legal Advisory Group (BLAG), which is defending DOMA in court, filed a motion for a stay of proceedings in the Pedersen case.  Because both cases were filed in district courts that fall under the Second Circuit Court of Appeals, and because Windsor is going to be appealed, BLAG argued in its brief that the Pedersen case should be stayed until the Second Circuit’s opinion, which would be a controlling precedent in other DOMA cases in the circuit.

Last week, the Pedersen plaintiffs filed their reply brief to the motion to dismiss, arguing that although BLAG has couched its argument in the terms of a stay of proceedings, “in reality, the House is simply asking this Court not to render a decision on the pending dispositive motions” (3).  Although BLAG’s motion seems logical on its surface, as the plaintiffs make clear in their brief, the possibility of an appellate court ruling is not enough to merit the “extraordinary relief” (3) of a stay.

American legal precedent makes clear that “[a] stay in a civil case is an extraordinary remedy” (5), because plaintiffs have a “right to have [their] case[s] resolved without undue delay” (6).  Even more importantly, when a stay is requested, courts must determine whether granting it would do harm or damage to one of the parties in the absence of a decision that could redress a wrong that one of the parties may have been victim to.  This argument is not always completely persuasive–the plaintiffs in the Prop 8 case argued unsuccessfully to the Ninth Circuit that there should be no stay on the ruling that the law was unconstitutional since it infringed upon the constitutional rights of Californians every day.

In addition, the plaintiffs argue that once a decision is handed down in Pedersen, the case could be docketed for an appeal that could theoretically be consolidated with the Windsor case in the Second Circuit.  Even if such a schedule were to end up being unfeasible, BLAG could seek a stay from the Second Circuit pending the Windsor appeal.  On this point, the plaintiffs are entirely correct–the proper course for the Pedersen case would be a stay of a decision striking down DOMA pending an appeal in Windsor, rather than a request that the lower court make no decision at all.

For these reasons, it is likely that BLAG’s motion for a stay of proceedings in Pedersen will be denied, which is a good thing–the Pedersen plaintiffs are entitled to a decision on the merits of their own suit, as opposed to the technicalities of another one.  Still, even if a stay is denied, it is also likely that these Second Circuit cases may be precluded by a Supreme Court decision on the First Circuit appeal of the Massachusetts DOMA cases that we expect BLAG to file by the end of the week.

Below, via Scribd, is the plaintiffs’ full brief (h/t to Kathleen).

[scribd id=98218606 key=key-cw8uawywdxfga63e0yn mode=list]

3 Comments June 26, 2012

House GOP to quickly appeal DOMA cases to Supreme Court

By Jacob Combs

Yesterday, the Bipartisan Legal Advisory Group (BLAG), which has been defending the constitutionality of DOMA in court on behalf of the House of Representatives’s Republican leadership, filed a motion in the Pedersen v. OPM case seeking a stay of proceedings.  The Pedersen case was filed in Connecticut district court, and BLAG argues that since the case falls under the same appellate court (the Second Circuit Court of Appeals) as another case, Windsor v. USA, in which a New York district court judge struck DOMA down, Pedersen should be stayed until an appellate decision is made in the Windsor case.

Buried in BLAG’s brief in Pedersen, though, is a little nugget about the companion DOMA cases of Gill v. OPM and Massachusetts v. HHS, in which the First Circuit Court of Appeals recently filed a consolidated decision upholding a district court ruling that declared DOMA unconstitutional.  The First Circuit decision set the Massachusetts case on the road to the Supreme Court, with a deadline for filing a petition for certiorari (essentially, appellate review by the high court) set for August 29.  In their Pedersen filing, BLAG makes it clear that they will move much more quickly to appeal the Massachusetts case to the U.S. Supreme Court:

The House now is preparing a petition for certiorari in the Massachusetts case, a petition which it intends to file by the end of this month. Massachusetts is a good candidate for Supreme Court review, as the First Circuit itself recognized: “Supreme Court review of DOMA is highly likely.” If the Supreme Court grants certiorari in Massachusetts, which we think is likely,  the Court likely will docket the case for briefing, argument and decision during the October 2012 Term (3).

Once BLAG files its petition by the end of June, the other parties will have 30 days to respond with their arguments as to whether or not the Supreme Court should take up the case.  Because the Court will be on summer recess starting sometime next week, a decision on whether or not it would take up the case would likely wait until the fall term.  Because of the significance of the constitutional issue at hand and the ever-inceasing number of challenges to DOMA being filed across the country, it seems very likely that the Supreme Court will take up the Massachusetts case.  However, it is also possible that it could hold onto the case without refusing to rehear it to allow for other district or appellate courts to weigh in on the statute’s constitutionality.

10 Comments June 21, 2012

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