November 30, 2012
By Jacob Combs
On Wednesday, the Second Circuit granted a motion filed by the Obama Administration seeking to suspend the briefing schedule in the Pedersen v. OPM case challenging the constitutionality of the Defense of Marriage Act pending possible Supreme Court review of the case. If the Supreme Court does not takes up the case, the court ordered Wednesday, the parties must file their briefs in the following 14 days; if the Supreme Court takes up the case, the parties will consult with the court’s attorneys (and, if necessary, the court itself) to reach an agreement holding the case in abeyance.
In July, a district court judge in Connecticut ruled in favor of the plaintiffs and declared DOMA unconstitutional. The plaintiffs filed a petition for Supreme Court review (which the Obama Administration later did as well) and asked the Second Circuit to expedite its proceedings in the case, which it refused to do.
The Pedersen DOMA challenge is one of several pending before the Supreme Court, which will consider in a conference today whether it will hear all, some or none of the DOMA challenges in its current term. Another challenge, out of New York, was considered by the Second Circuit, which ruled 2-1 in October that DOMA is not constitutional, relying upon the more searching form of constitutional review known as heightened scrutiny. That challenge, called Windsor v. USA, will also be considered during today’s conference by the Supreme Court, which could announce which cases it will be hearing as early as today.