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Holiday news you might have missed…
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
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
13 Comments Leave a Comment
1.
karen in kalifornia | September 3, 2012 at 4:16 pm
" because of her Canadian marriage "
I have to laugh because I don't want to cry….see, Windsor really isn't married. You know that "so -called" same sex thing. BLAG republican forces ie Clement I believe it is, are bad people period.
2.
Mike in Baltimore | September 3, 2012 at 5:24 pm
All the opponents to BLAG have to do is find about 5 or 10 examples of couples married in Canada, who then moved to the US and obtained US citizenship (or US citizens who returned to the US), then when one spouse died the other spouse got the estate with no taxes assessed. Since it's New York state, I'm sure they won't have a lot of trouble finding examples.
And if necessary, they can expand the 'search' to Vermont (also in the 2nd Circuit), and/or New Hampshire and Maine. I seriously doubt they'd have to search outside New York state, though.
It would be difficult for BLAG to argue that the marriages in Canada were not legal in those circumstances.
3.
SHOES THROWER | September 3, 2012 at 7:29 pm
This sounds reasonable. Edit Windsor was married in Canada; all other DOMA plaintiffs who prevailed were married in the states in which they reside. Even assuming arguendo that refusing to recognize a state's same-sex marriage does not satisfy the appropriate level of scrutiny, refusing to recognize a same-sex marriage from Canada might do so.
In addition, the New York Court of Appeal had yet to rule on if New York law recognized foreign same-sex marriages in 2009.
(It should be noted that Windsor is suing on behalf of her widow. If this calls her standing into question, the Supreme Court would have to look to New York state law to determine if she has authority to execute her widow's estate.)
4.
Deeelaaach | September 3, 2012 at 7:48 pm
For this to be reasonable, we only have to look as far as how New York state handles similar cases between heterosexuals. If this is not an issue between heterosexuals, it is not reasonable to hold same sex marriages to a different standard. Full disclosure: I don't live in NY and I don't know anything about NY law, nor am I a lawyer or a legal analyst of any kind. This is the opinion of a lay person who knows nothing about specific laws etc for NY.
But I would like to know: how does NY handle divorces of those who live in the state who were married in Canada? And I would find it difficult to believe that there are NO heterosexual couples living in NY who were not married in Canada. And given the divorce rate, I would guess these cases have gone through the courts before with no issues. If what I think has indeed been the case, then it is merely a smoke screen. In fact, is it not a straw man?
5.
bythesea | September 3, 2012 at 8:59 pm
As far as I am aware all 50 states automatically recognize all opposite sex Canadian marriages as a matter of course.
6.
karen in kalifornia | September 3, 2012 at 9:20 pm
Mike, I know all that. I agree.
My point was that won't keep BLAG lawyers from objecting anyway. They have no shame.
7.
Larry | September 4, 2012 at 5:06 am
http://en.wikipedia.org/wiki/Same-sex_marriage_in…
NY recognized same sex marriages in other jurisdictions in May 2008 under a directive of Governor Paterson. Also in May 2008, the NY Court of Appeals allowed a lower court's decision to stand that recognized other jurisdictions.
There really isn't any debate about whether NY considered Windsor married at the time of her wife's death.
8.
devon | September 4, 2012 at 6:11 am
A major concern for me is the affect an expected Romney election would have on all the DOMA cases.
The republican has pledged to defend DOMA numerous times and I assume that he would order the DOJ to adhere to his anti gay position when he takes office in jan. 2013.
If the supreme's decide to hear DOMA cases in the upcoming session, would the DOJ's new orders to defend DOMA cause the cases to be delayed or send back to the circuit courts?
9.
AnonyGrl | September 4, 2012 at 7:38 am
While we obviously need to keep up the fight against Romney, I take heart in two things.
1) AS Romney was speaking, during the convention, which is supposed to act as a big commercial to pump up their constituency, his approval ratings were falling. Drastically.
2) The Democrats have actually put marriage equality in their platform!!!! It is in there!!! Yay! They could have backed out, or soft pedaled it, but they did not. And I actually think this is going to win them more votes than it loses them.
10.
SHOES THROWER | September 4, 2012 at 10:55 am
The issue is whether New York law at the time recognized same-sex marriages from other jurisdictions.
In the DOMA case in Oklahoma, the litigants there obviously can not credibly claim that their same-sex marriages are recognized by Oklahoma law, and as such for their challenge against DOMA to succeed, they must establish that the Constitution requires Oklahoma to recognize same-sex marriage.
11.
Mike in Baltimore | September 4, 2012 at 1:37 pm
Yes, New York state did, just as Maryland does, recognized same-sex marriages from out of state.
And we are discussing a case where the couple was married in Canada, not in Oklahoma. Or can it be unConstitutional in New York, but Constitutional in Oklahoma?
12. Prop 8 Trial Tracker &raq&hellip | December 13, 2012 at 6:31 pm
[...] a separate filing in the Windsor case at the Supreme Court) that it will be filing its own petition for certiorari asking the Court to review the Pedersen case. That filing could come at any [...]
13. Prop 8 Trial Tracker &raq&hellip | December 13, 2012 at 8:47 pm
[...] points made in both BLAG’s and the Justice Department’s responses to the petition. The Justice Department’s brief had suggested that this petition should be held “pending its consideration and disposition of [...]
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