August 20, 2012
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