November 8, 2012
By Scottie Thomaston
The Bipartisan Legal Advisory Group (BLAG), defending Section 3 of the Defense of Marriage Act for House Republicans, appealed the district court’s decision in Pedersen v. Office of Personnel Management in late September, a month after the Justice Department had appealed the case. Both parties have continued to file appeals in these cases to ensure that the case can legally be heard before the court: a party to the case has to be ‘aggrieved’, and there are also questions of legal standing for an ‘advisory group’ of Congress. The Justice Department has been arguing that BLAG’s standing as a legal advisory group is questionable under existing Supreme Court precedent, while BLAG has countered, in previous cases at least, that since the Justice Department got what it wanted in the district court ruling (Section 3 of DOMA was struck down) it doesn’t have legal standing to appeal a favorable ruling. (The Justice Department has said that since the Executive Branch is tasked with enforcing Section 3 of DOMA until the Supreme Court issues a final ruling, and the district court’s order prevents that from happening, it does indeed have standing.
And so, BLAG has typically asked courts to dismiss the Justice Department’s attempts to appeal district court decisions in these cases. And BLAG continues to be denied those requests: courts have consolidated the two appeals and treated them as one.
But on October 25, in Pedersen, BLAG withdrew its motion to dismiss the Justice Department’s appeal. It’s one less road block and procedural step for the Second Circuit to take before it decides Pedersen. The opening brief is scheduled for November 27, a week after the Supreme Court will have its conference to decide whether it will hear challenges to Section 3 of the Defense of Marriage Act and Prop 8. If the Court hears a challenge to Section 3 of DOMA, which is exceedingly likely, the case may be stayed pending final resolution of the constitutional question, even before the first brief is filed.