September 4, 2012
By Scottie Thomaston
The plaintiffs in Pedersen v. Office of Personnel Management, a Second Circuit Court of Appeals case challenging Section 3 of the Defense of Marriage Act, asked the court recently to expedite their case so it can be heard with the same three-judge panel that will hear Windsor v. USA. Arguments in Windsor are scheduled for September 27.
The Second Circuit has denied, without comment, the request to expedite the Pedersen case.
In the Pedersen case, only the Justice Department has appealed the district court’s decision. In these challenges to Section 3 of DOMA, there are usually two appeals: one from the DOJ and one from the Bipartisan Legal Advisory Group, defending the law on behalf of House Republicans. Since BLAG and the DOJ continue to dispute the legal Article III standing of the opposing party, both have continued to remain parties to litigation challenging Section 3. The Justice Department is, of course, no longer defending Section 3 of DOMA, since it believes laws classifying gays and lesbians should be subject to a heightened form of judicial scrutiny, and Section 3 of DOMA fails that heightened scrutiny; however, as part of the Executive Branch tasked with enforcing all laws, the Justice Department believes it has standing to appeal, as a judgment that Section 3 is unconstitutional would bar enforcement of the law and impede Executive Branch duties. The Justice Department does not believe that BLAG, as a “legal advisory” group for a Congressional body, has Article III standing to appear in federal court.
BLAG believes that the DOJ appeal is “superfluous” and that it does indeed have standing to appear properly in federal court. So it has typically appealed lower court judgments holding that Section 3 of DOMA is unconstitutional. But in this case, it has not yet appealed.
BLAG has instead filed a motion seeking an order by the court recognizing BLAG as a party in the appeal. The motion was denied, but the court suggests that BLAG, as a losing party in the judgment below, has every right to file an appeal seeking reversal of the district court decision (that struck down Section 3 of DOMA.) BLAG has 60 days after entry of judgment to file an appeal. That would be October 1.
Also, in Pedersen, at the Supreme Court, the Justice Department has noted (in 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 time.
h/t Kathleen for these filings
Order denying motion to expedite:12-3273 #27
BLAG motion asking the court to recognize it as a party:12-3273 #24
Order denying BLAG’s motion:12-3273 #39