August 23, 2012
By Jacob Combs
In a one sentence order released today, the Second Circuit Court of Appeals denied a request by the Bipartisan Legal Advisory Group (BLAG) to suspend oral arguments at the appellate court in the DOMA case Windsor v. USA that are currently scheduled to take place in New York on September 27.
Edie Windsor, a New York widow forced by DOMA to pay over $360,000 in estate taxes following the death of her wife, won a district court ruling striking down DOMA and ordering her taxes be repaid. Windsor had appealed the case to the Second Circuit and requested an expedited appeal schedule, but she also filed a petition for certiorari with the U.S. Supreme Court, seeking to have the case heard there before it is taken up by the Second Circuit. BLAG asked the appeals court to put the case on hold pending a Supreme Court decision on the Windsor petition; the Ninth Circuit recently vacated arguments in another DOMA case, Golinski v. OPM, that had been appealed directly to the Supreme Court.
As Scottie wrote earlier, in her original brief, Windsor wrote:
“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.”
Another case in which DOMA was struck down by a district court, Pedersen v. OPM, which was filed in Connecitcut, has also been appealed both to the Second Circuit with a request for an expedited appeals schedule and directly to the Supreme Court. BLAG could seek a suspension of Second Circuit argument in that case as they did in Windsor, although given today’s order it would appear that such a petition would have limited success.
The Supreme Court could consider any of the DOMA cases, including Windsor and Pedersen, in its first conference in late September. That would happen right around the same time as the September 27 hearing in the Second Circuit, so we may see a bit of activity on the case at both levels of appeal.
Below, via Kathleen, is the Second Circuit’s order:
UPDATE 1 (Scottie Thomaston): Via Kathleen, here are two letters related to the motion to halt oral argument: one from Windsor noting that Pedersen was petitioned to the Supreme Court for review, and suggesting that this may push back the conference of all the DOMA cases to October 26, and a reply from BLAG suggesting that the earlier petitions are on track to be considered at the October 5 conference, therefore oral argument should be suspended, since it will take place a week before:
Plaintiff’s letter:12-2335 #212
BLAG’s response:12-2335 #220