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Edith Windsor files supplemental brief in challenge to Section 3 of DOMA
November 21, 2012
By Scottie Thomaston
On October 29, Edith Windsor filed a supplemental brief in her case challenging Section 3 of the Defense of Marriage Act. The filing comes as part of the response to the Justice Department’s petition to the Supreme Court, asking them to review her case, and it comes after the Justice Department’s own supplemental brief. Windsor asks the Court to grant USA v. Windsor, via the Justice Department’s petition in the case, agreeing with the Department’s earlier brief: “For the reasons stated by the United States in that brief and for the reasons stated in her prior briefing, Respondent Edith Windsor respectfully requests that this Court grant the petition filed by the United States.”
This is the last brief filed in her case – and the final filing we have in all of the DOMA cases currently awaiting a conference at the Supreme Court to determine whether to hear challenges to Section 3 of the Defense of Marriage Act. As of this writing, the conference to decide whether to hear those cases, as well as the Prop 8 case and the Arizona domestic partnership benefits case, is scheduled for Friday, November 30. If this remains true, we would likely hear whether the Court will hear the cases, and which ones, the following Monday, December 3.
h/t Kathleen for this filing
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8 Comments Leave a Comment
1.
Peter Morak | November 23, 2012 at 11:15 am
<img src="http://www.freecouponplace.info/ikea/makt.jpg"/> Marked it on my calender, Dec 3 it is then.<img src="http://www.freecouponplace.info/xbox/yle.jpg"/>
2.
SHOES THROWER | November 25, 2012 at 8:59 am
What would happen if the Supreme Court accepts Gill, denies cert to Windsor, and later upholds DOMA? Would that effectively reinstate DOMA in the Second Circuit? (Presumably, DOMA will be null and void in the Second Circuit if the Supremes deny cert to Windsor)
3.
Eric | November 25, 2012 at 9:27 am
If SCOTUS denies cert, the circuit court ruling would stand.
4.
SHOES THROWER | November 25, 2012 at 10:11 am
It would immediately stand, but what if the Supremes take one of the other cases, and upholds DOMA or a similar law? I do suppose it might be possible for the Court to uphold DOMA as applied to the Gill plaintiffs, while expressly reserving the question of whether DOMA is constitutional in other contexts. But it could also rule in a way that would contradict the Second Circuit's reasoning.
5.
Anthony | November 25, 2012 at 11:36 am
I don't think Anthony Kennedy would hold that Section 3 is constitutional. He's the author of two major gay rights cases, and the last thing he would want to do is contradict himself, and be seen on the wrong side of history.
6.
Anthony | November 25, 2012 at 11:39 am
I think Roberts could potentially vote for us as well.
7.
SHOES THROWER | November 26, 2012 at 3:49 pm
he was also the author of Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), which rejected a due process challenge to the pre-DADT ban on gays in the military. Notably, Beller expressly reserved the question of whether private homosexual conduct was protected in the civilian context, 632 F.2d at 810 (holding that " that the importance of the government interests furthered, and to some extent the relative impracticality at this time of achieving the Government's goals by regulations which turn more precisely on the facts of an individual case, outweigh whatever heightened solicitude is appropriate for consensual private homosexual conduct"), and as such remains undisturbed by Lawrence v. Texas, 529 U.S. 558 (2003)
Romer v. Evans, 517 U.S. 620 (1996), dealt with an entirely different question than those decided in Beller and Lawrence. However, the broad sweep of the challenged policy,. which banned "minority status, quota preferences, protected status or claim of discrimination" for homosexuals, but not heterosexuals. DOMA is narrower, only affecting marriage. It is not even clear that DOMA forecloses alternative means for the federal government to provide benefits to non-spouses, including same-sex partners. Discrimination on the basis of sexual orientation is prohibited in federal employment and other federal programs. See, e.g., 13 C.F.R. § 127.303(b)(3) (small business assistance); 31
C.F.R. § 0.214(a) (prohibiting discrimination by Department of the Treasury employees against other employees, applicants for employment, or "person[s] dealing with the Department on official business"); Exec. Order No. 13,160, § 1-102, 65 Fed. Reg. 39,773 (June 23, 2000), reprinted in 42
U.S.C. § 2000d note (nondiscrimination in federally conducted education and training programs);
Exec. Order No. 11,478, § 1, 34 Fed. Reg. 12,985 (Aug. 8, 1969), reprinted as amended in 42
U.S.C.A. § 2000e note (equal employment opportunity in federal government)., all cited in Brief of United States in Support of Motion to Dismiss, Smelt v. United States, CV09-00286 (C.D. Cal), at 31.
8.
SHOES THROWER | November 27, 2012 at 8:04 pm
To add, see
Presidential Memorandum, Extension of Benefits to Same-Sex Domestic Partners of Federal Employees (June 20,
2010).
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