Archives – September, 2012
By Scottie Thomaston
Until now, only the Justice Department appealed Pedersen v. Office of Personnel Management to the Second Circuit. The court has scheduled their opening brief for November 27. In these cases challenging the constitutionality of Section 3 of the Defense of Marriage Act, the Justice Department has stopped defending the law and House Republicans have stepped in; because of this, both of those parties dispute the other’s legal standing to appeal the decision below, and both parties file appeals to ensure that the court has the right to even decide the merits of the constitutional challenge in the case.
Both the House and the Justice Department (on behalf of the Executive Branch defendants) claim to have the right to appeal the judgment below. The Executive Branch, though it supports a ruling holding that Section 3 of DOMA is unconstitutional, is barred from its duty to enforce the law because of the court’s judgment entered below. And House Republicans suggest they have a right to defend the law they passed.
The Bipartisan Legal Advisory Group (BLAG), which represents House Republicans, has now filed its notice of appeal in the case.
The plaintiffs, Gay and Lesbian Advocates and Defenders (GLAD), who filed the initial challenge, had asked the Second Circuit to expedite the proceedings in the case so that it would track the proceedings in the other Second Circuit challenge to the constitutionality of Section 3 of DOMA, Windsor v. USA. The court denied that motion, so although oral arguments were heard yesterday at the Second Circuit in Windsor, this case is on a slower track.
Pedersen and Windsor were also petitioned to the Supreme Court for review before judgment at the appeals court by GLAD and the Justice Department. Windsor was listed for the September 24 conference, but no action has been taken.
h/t Kathleen for this filing
By Jacob Combs
A bill to legalize equal marriage rights for gays and lesbians failed yesterday in the Tasmanian Upper House on an 8-6 vote after two days of intense, thorough debate. Lara Giddings, the Tasmian Premier and a proponent of marriage equality, expressed disappointment in the outcome but said that she would keep pushing for equality.
“We will continue this,” Giddings said. ”It’s not the end. It’s the beginning.” Greens leader Nick McKim also criticized the vote, saying, “The Council’s chosen fear over love, the Council’s chosen division over unity, and it’s chosen the 19th century over the 21st century.”
In Delaware, on the other end, there are promising signs pointing to the possible success of marriage equality in the state sometime next year. The Delaware News Journal reported yesterday that Pete Schwartzkopf, a Democrat widely expected to become the state’s next Speaker of the House, told the paper that a marriage equality bill has a good chance of coming before the General Assembly in 2013, and that he’d vote for it. Schwartzkopf called marriage equality a “no-brainer,” although he said he has “no idea what the votes are.”
A civil unions bill passed the state legislature in 2011 with only two Republican votes in the legislature. Governor Jack Markell, who supports equal marriage rights, told The Huffington Post he believes the issue will come up for a vote next year, and that if it does, he is open to taking a leadership role in the process like Maryland’s Martin O’Malley and New York’s Andrew Cuomo did when their states were considering marriage equality.
H/t to jpmassar for posting both these items in Quick Hits
By Jacob Combs
I just returned from the Second Circuit Court of Appeals in Manhattan, where a 3-judge panel heard oral arguments in the appeal of the DOMA case Windsor v. USA. In June, New York District Court Judge Barbara Jones declared DOMA unconstitutional and ordered Edie be refunded the $363,000 in estate tax she paid upon the death of her wife, Thea Spyer. Windsor’s attorneys appealed the case directly to the Supreme Court, but BLAG, the legal group representing the House of Representatives and defending the law, asked the Second Circuit to take up the case. The 3-judge panel who heard oral arguments today was comprised of Chief Judge Dennis Jacobs, a George H.W. Bush appointee, Judge Chester Straub, a Bill Clinton appointee, and Judge Christopher Droney, an appointee of President Barack Obama. (more…)
Hearing set in Aranas v. Napolitano, and House Republicans are granted their motion to intervene to defend Section 3 of DOMA
By Scottie Thomaston
The federal judge hearing Aranas v. Napolitano, a class-action challenge to Section 3 of the Defense of Marriage Act as it applies to immigration, has granted the Bipartisan Legal Advisory Group (BLAG)’s motion to intervene to defend the law. BLAG has stepped in to defend DOMA where the Justice Department has decided it will forgo its defense, and it has already filed motions in the case before being granted the opportunity to intervene. Most recently, BLAG filed a motion to dismiss the case, citing, among other things, a 1972 Supreme Court precedent that is a one-sentence dismissal “for want of a substantial federal question”, considered by BLAG to be a decision on the legal merits of any claim pertaining to equal protection rights of same-sex couples who want to get married. BLAG suggests this case bars any challenge to Section 3 of DOMA, the federal definition of marriage.
The order notes that since the motion to intervene is granted, the hearing on this motion is now canceled.
The judge has also set a briefing and argument schedule in the case. A hearing on the motion to dismiss the case as well as motions for class certification (so the case can be heard as a class-action) and a preliminary injunction barring deportation while the trial continues will be held November 6.
h/t Kathleen for these filings
Order granting motion to intervene:8:12-cv-01137 #43
Briefing and argument schedule:8:12-cv-01137 #44
By Jacob Combs
I’m at the Second Circuit Court of Appeals today in Manhattan covering oral arguments in the DOMA case Windsor v. USA. Edie Windsor, an 83-year old New Yorker, was forced to pay more than $363,000 in estate tax after her wife, Thea Spyer, died. A district court judge in New York ruled in Windsor’s favor, and while the ACLU, which is representing her, has appealed the case straight to the Supreme Court, the Second Circuit is still considering the case on its own.
Arguments began today at 10 a.m. Eastern time, and I was unfortunately unable to liveblog the case because laptops and cell phones are prohibited in the courtroom. As this post publishes, I’ll be at the court taking notes the old-fashioned way on pad and paper, and I’ll be posting a complete summary and analysis later in the day. Stay tuned!
By Scottie Thomaston
- NJ gay couple is suing over use of their wedding photo in a campaign mailer.
- SF Chronicle discusses LGBT rights at the Supreme Court.
- Tasmania has started debating a marriage equality bill.
- Last night Adam Lambert performed to raise money for Marylanders for Marriage Equality.