June 21, 2012
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.