September 28, 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