January 7, 2013
By Scottie Thomaston
Bishop v. United States is a case filed in federal court in Oklahoma (filed initially as Bishop v. Oklahoma) challenging Sections 2 and 3 of the Defense of Marriage Act. Developments in the slow-moving case have been few and far between as other cases have taken up much of the oxygen. But the Bipartisan Legal Advisory Group (BLAG) eventually intervened as they have in all challenges to Section 3 of DOMA. They then filed their own motion for summary judgment and an opposition to plaintiffs’ motion for the same – seeking to have the court decide the merits in their favor.
Now they have filed a “Notice of Legal Developments” in the case. The notice is just to catch everyone up on the status of the cases working their way through the courts. BLAG points out that the Supreme Court has taken up a DOMA case (United States v. Windsor) and the Prop 8 case (Hollingsworth v. Perry) and making the district court aware of the fact that other courts have stayed proceedings in their challenges to Section 3 of DOMA.
They also argue that two recent developments back up their arguments: 1) the November 2012 election results, and 2) Sevcik v. Sandoval, the Nevada marriage case that was decided against gay couples at the district court and subsequently appealed to the Ninth Circuit.
Regarding the election, BLAG writes that the four wins (three in favor of marriage equality and one fighting off a proposed amendment in Minnesota to constitutionally ban it) show that heightened scrutiny is not needed because it shows there is not a lack of political power, in their view. And regarding Sevcik, the district court held that only rational basis review and BLAG suggests that the same arguments generally apply in this case.
The Court need not rule on the pending motions at this time. Prudence and judicial economy suggest that it stay its hand in favor of the pending Supreme Court proceedings that likely will control the outcome of this case. Should the court be inclined to rule on the motions, however, recent developments only make clearer that the House’s motion for summary judgment should be granted, and the plaintiffs’ claims dismissed with prejudice.
This case could continue or join the others that are now stayed awaiting Supreme Court action.
h/t Kathleen for this filing