July 31, 2012
By Scottie Thomaston
Jonathan Capehart at the Washington Post has a run-down of some upcoming events regarding marriage and DOMA. His post comes with a chart from centrist group Third Way listing “Six imminent marriage moments” that include some of the cases that are upcoming. The report suggests that the Supreme Court will decide in early October if it will take one or more of the DOMA cases as well as Perry, the Prop 8 case. Then in February 2013, the Supreme Court would hear oral arguments, according to the report, with a decision in June 2013.
So where are we with the marriage equality and DOMA cases that have recently seen some movement? Here’s a quick look:
The Supreme Court
Gill v. OPM: The Bipartisan Legal Advisory Group (BLAG) who is defending the law on behalf of House Republicans, petitioned the Court to review the case. It had been decided by an appeals court – the First Circuit – and is ready for review by the Court. The Justice Department also petitioned the Court to review the case.
Massachusetts v. HHS: This is the companion case to Gill. The state of Massachusetts has asked the Supreme Court to review the case on its own along with the Justice Department’s petition of the consolidated cases. Since it was decided along with Gill at the First Circuit it is also ready to be heard.
Golinski v. OPM: The Justice Department petitioned the Supreme Court to review the case before judgment at the Ninth Circuit. Cert before judgment is rare, but it is granted, and some, like Professor Nan Hunter, have speculated that granting this case would provide a way for Justice Kagan to vote on a DOMA case, since she would likely be recused from Gil due to her past work on that case. Without all nine Justices participating, there is a risk of a 4-4 split among the Justices, which would leave the lower court’s opinion intact and only binding on its circuit (in this case the First Circuit.) Having a federal law inoperable in only a single circuit would be an untenable situation. Karen Golinski, the plaintiff in the case, wrote a brief agreeing that the Court should review her case. The Ninth Circuit was scheduled to go ahead with its own review of the case before the Supreme Court decides whether to hear it, but last week they canceled oral arguments and decided to stay the case pending the outcome at the Supreme Court.
Windsor v. USA: The Justice Department asked the Supreme Court to review the case before judgment at the Second Circuit. Then the Bipartisan Legal Advisory Group (BLAG) moved to dismiss the DOJ’s appeal at the Second Circuit (as they have done in other DOMA cases, since they consider the DOJ appeal superfluous after they filed their own.) Currently the case is on appeal to the Second Circuit and awaiting a decision on whether the Supreme Court will hear the case.
Perry v. Brown, the Prop 8 case: After the decision by the Ninth Circuit, the proponents of Prop 8 said they would petition the Supreme Court to review the case. We are still waiting for that petition.
The District Courts
Pedersen v. OPM: The case is fully briefed and awaiting a decision by the District Court. It has been ready for a decision for many months now, so it could come down any time. Then it would be appealed to the Second Circuit by the losing party.
Blesch v. Holder: Immigration Equality’s DOMA challenge has been put on hold pending Second Circuit (or possibly Supreme Court) resolution of Windsor v. USA.
The Appeals Courts
Dragovich v. US Dept of Treasury: It is on appeal to the Ninth Circuit. Both BLAG and the federal defendants in the case have appealed.
Windsor v. USA: The case is on appeal to the Second Circuit and also awaiting a decision on whether or not the Supreme Court will hear it. At this point the Second Circuit appeal has not been stayed, so until it is, it will continue on a normal track until the Supreme Court votes on whether to hear it.
Golinski v. OPM: The case is stayed pending Supreme Court action.
We’ll keep everyone up to date with the latest developments.