September 7, 2012
By Scottie Thomaston
Windsor v. USA, challenging Section 3 of the Defense of Marriage Act, has been distributed for the September 24 conference at the Supreme Court, after the final response and reply briefs were filed in the case. The Bipartisan Legal Advisory Group (BLAG), tasked with defending the law, filed a response brief in opposition to Supreme Court review of the case.
Windsor is a case in which the plaintiff herself, Edith Windsor, petitioned the Court for a writ of certiorari before judgment at the appeals court. The case is also working its way through the Second Circuit Court of Appeals, where BLAG has made the suggestion that the court should ‘certify’ the question to the state of New York whether Windsor’s Canadian marriage would have been legally recognized in New York. Essentially he wants the appeals court to send the case back to New York so they can answer a question of state law that BLAG sees as a bar to a decision in the case. In its brief in opposition to Supreme Court review, BLAG discusses this point. They write, “As the district court recognized, see App. a6, Petitioner’s standing thus depends on whether New York law would have recognized her Ontario marriage before the time that New York began to permit same-sex marriages in-state.[...]Because Petitioner’s standing turns on the answer to this question, the House has requested that the Second Circuit certify it to the New York Court of Appeals. The district court did not have the option to do so.”
They write that because of this issue of ‘standing’, if the Supreme Court were to take up the case, they would need to either certify the question themselves to the New York Court of Appeals or decide on their own if New York law would have recognized Windsor’s marriage.
Moreover, BLAG suggests that, contrary to Windsor’s petition, issues in the case have not been fully ventilated. They point to the issue of New York law, the “unusual” briefing schedule “without the benefit of oral argument” at the district court, and a “novel level of scrutiny”, which they claim was applied in this case.
And finally, they argue that reviewing this case would not necessarily expedite resolution of the issues involved, since BLAG already filed its own petition in the Gill case after judgment at the First Circuit Court of Appeals. Gill raises the exact same issues and with a full hearing at the appeals court, the case is ready to be reviewed by the Justices.
Windsor filed a reply brief, addressing 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 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).” The Justice Department also said it would file its own petitions for certiorari in this case and in Pedersen v. Office of Personnel Management, another constitutional challenge to Section 3 of DOMA.
Windsor says that holding this case, instead of looking at all the DOMA cases together to decide which would present the best vehicle for Supreme Court review, would be “inefficient.”
Her brief also suggests that although ultimately the district court decided the case by applying rational basis review, the issue of the level of scrutiny to be applied to laws classifying gays and lesbians was “fully briefed and argued” and even the expert evidence presented in her case is nearly identical to the expert evidence presented in Golinski v. Office of Personnel Management.
She takes on BLAG’s ‘standing’ claims, pointing out that “every New York appellate court” that has addressed the question has ruled that New York law recognizes out of state marriages.
And lastly, Windsor is 83 years old and continues to suffer health issues. The brief says she broke her ribs recently. While they write that the case would continue even with her passing, via a successor executor, she should see the end of this challenge herself, since she is the person suffering from this discriminatory law.
Since the case is ready for the September 24 conference, they could decide whether they will hear it on that day, with an announcement likely the following week. Alternatively, they could hold the petition for a later date.
h/t Kathleen for these filings