August 23, 2012
By Scottie Thomaston
Pedersen v. Office of Personnel Management is on appeal to the Second Circuit Court of Appeals, since the Justice Department has appealed the case. The plaintiffs, Gay and Lesbian Advocates and Defenders (GLAD), have petitioned the Supreme Court for a writ of certiorari to review the lower (district) court’s decision.
While awaiting a decision on whether the Supreme Court will take up the case – likely to be announced at the beginning of October – the plaintiffs are asking the Second Circuit to expedite the appeal so that it can be heard by the same three-judge panel as Windsor v. USA, among other reasons. The Bipartisan Legal Advisory Group (BLAG), who is defending the law, has asked the appeals court to suspend oral argument in that case, however, and whether or not they will suspend it is unknown. Another appeals court, the Ninth Circuit, did halt oral argument in a challenge to Section 3 of DOMA, Golinski v. OPM, after the Justice Department petitioned the Supreme Court for a writ of certiorari in the case.
The plaintiffs list four reasons the appeals court should expedite the case: (1) the plaintiffs face ongoing harms from de jure discrimination, (2) expediting the appeal would allow it to be heard by the same panel hearing Windsor, and both involve the legal issue of the constitutionality of Section 3 of DOMA, (3) the district court’s opinion did a thorough examination of the standard of review applied to classifications of sexual orientation, and since there is no precedent in the Second Circuit on the level of scrutiny that should be applied in these cases, the lower court’s examination would be really helpful, and (4) BLAG would not be unduly burdened by an expedited appeal; Windsor is already on an expedited schedule anyway, so, they argue, there is no reason for this case to move on a slower track.
h/t Kathleen for this filing
(The argument for an expedited appeal begins on page 113.)