House Republicans ask Second Circuit to halt oral arguments in Edith Windsor’s challenge to Section 3 of DOMA
August 21, 2012
By Scottie Thomaston
Edith Windsor has petitioned the Supreme Court to review the district court decision in her case before it is heard by the appeals court, and the case is also on appeal to the Second Circuit Court of Appeals, where the Bipartisan Legal Advisory Group (BLAG), defending Section 3 of DOMA for House Republicans, has asked the court to dismiss the DOJ appeal but not its own.
Now, BLAG is asking the Second Circuit to cancel its pending oral argument, currently scheduled for September 27, until the Supreme Court decides whether it will grant the petition in Windsor. BLAG writes, however, that were the Court to grant any one of the five petitions challenging Section 3 of DOMA but not Windsor, they would then ask the court to stay the case pending Supreme Court review of Section 3. Their motion to suspend oral argument in the case suggests that they “anticipate” the Supreme Court will decide whether to review the case fairly soon after oral argument at the Second Circuit. “[I]t is likely,” they write, “that the Supreme Court will act on the above petitions – including the petition in this case – in early October, a very short period of time after September 27, when oral argument in this case currently is scheduled.”
BLAG points out that the Ninth Circuit Court of Appeals recently vacated oral argument in another challenge to Section 3 of DOMA, Golinski v. Office of Personnel Management, because the Justice Department filed a petition for certiorari in that case as well.
In her reply brief, Windsor points out that the court agreed to the expedited oral argument schedule with full knowledge of a pending petition for certiorari, since BLAG had notified the court it would be filing a petition in the Massachusetts case, also challenging Section 3 of DOMA. And two weeks before the court scheduled its oral argument, Windsor submitted a copy of her petition to the Second Circuit.
The brief notes that “the Second Circuit is the only federal circuit in which all states permit same-sex couples to marry” and that this circuit is one that has not addressed the level of scrutiny required for laws classifying gays and lesbians. Therefore, Windsor suggests it is “vitally important that the Second Circuit be heard on this issue and be heard as expeditiously as possible in order to ensure that legally married same-sex couples in New York, Connecticut, and Vermont are protected from the daily unconstitutional burdens and indignities imposed by DOMA” and “this Court may provide important guidance to other courts throughout the country (as well as the Supreme Court) on the appropriate level of scrutiny for laws that discriminate on the basis of sexual orientation.”
If the appeals court halts oral argument in this case, there will be no cases pending before both the Supreme Court and appeals courts.
h/t Kathleen for these filings