June 26, 2012
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).