September 3, 2012
By Scottie Thomaston
It’s Labor Day, but we had a couple of new filings on Friday that are worthy of mention:
- In Windsor v. USA at the Second Circuit, the Bipartisan Legal Advisory Group (BLAG) who is defending Section 3 of DOMA for House Republicans, had asked the court to dismiss the Justice Department’s appeal in the case, and the Justice Department opposed that motion. The Second Circuit issued an order that the motion to dismiss will be deferred until after oral arguments in the case (which will take place on September 27 since the court denied BLAG’s motion to suspend oral arguments.)
- The Justice Department filed its response to the petition for certiorari to the Supreme Court in Windsor v. USA noting that BLAG has raised the threshold question of whether Windsor has standing because of her Canadian marriage (and the fact, they claim, that New York law is ambiguous on whether it would have recognized her marriage), and noting that Windsor was the prevailing party below so she may not be able to petition the Court to review it.
Ultimately, they suggested the Supreme Court hold Windsor’s petition. But the DOJ makes an important admission: they will be filing their own petitions for certiorari in Windsor and in Pedersen v. OPM, another case on appeal to the Second Circuit where the district court struck down Section 3 of DOMA as unconstitutional. They conclude:
This Court should hold the petition for a writ of certiorari before judgment pending its consideration and disposition of the petitions in United States Department of Health and Human Services v. Massachusetts, Nos.12-13 (filed June 29, 2012), 12-15 (filed July 3, 2012), and 12-97 (filed July 20, 2012), and Office of Personnel Management v. Golinski, No. 12-16 (filed July 3, 2012). If the Court determines that neither Massachusetts nor Golinski provides an appropriate opportunity to decide the question presented, the Court should consider granting the petition in this case, in conjunction with the petition to be filed by the government, and with the petition in Pedersen v. Office of Personnel Management, No. 12-231 (filed Aug. 21, 2012), and the petition to be filed by the government in that case.
h/t Kathleen for these filings
Second Circuit order:12-2335 #236
DOJ response to Windsor cert:12-63 #5 DOJ Response