July 18, 2013
By Scottie Thomaston
Nearly a month after the Supreme Court issued its decision in United States v. Windsor striking down Section 3 of the federal Defense of Marriage Act, some of the remaining challenges to the law are still working their way through the lower courts. Here is a short round up of some of the most recent updates:
- Golinski v. Office of Personnel Management: this was the first case in which the district court had applied a heightened level of judicial scrutiny to laws that classify on the basis of sexual orientation to strike down Section 3 of DOMA. It was appealed to the Ninth Circuit Court of Appeals, and then stayed pending the outcome of Windsor. Last Thursday, the court asked the parties to write a letter addressing Windsor:
The parties are requested to file letter briefs of no more than 5 pages each addressing the appropriate disposition of this case in light of United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. June 26, 2013). The letters should be filed no later than 14 days after this order.
- Bishop v. United States: This case used to be known as Bishop v. Oklahoma; it is a challenge to the entire Defense of Marriage Act as well as Oklahoma’s ban on marriage equality. It’s also the longest ongoing DOMA challenge. The plaintiffs filed a supplemental brief arguing that Windsor impacts not only their decision on the constitutionality of Section 3 of DOMA, but should also mean that Section 2 and the state’s marriage ban is unconstitutional under the majority opinion’s reasoning. they also write that the Bipartisan Legal Advisory Group (BLAG) only joined the case to defend Section 3 of DOMA, so Windsor‘s outcome means they likely have no standing.
- Aranas v. Napolitano: This case is a challenge to Section 3 of DOMA as it relates to immigration. On July 12, the district court held a status conference via telephone to discuss how to proceed after Windsor. At the conference, a briefing schedule on the pending motions in the case was ordered:
[O]pposition is due no later than July 29, 2013, reply, if any, is due no later than August 5, 2013 with a tentative hearing date of August 19, 2013 at 10:00 a.m.
The Bipartisan Legal Advisory Group (BLAG) had also requested to withdraw from the case and their request was granted.
- McLaughlin v. Panetta: This is a challenge to Section 3 of DOMA as well as other statutes defining marriage for purposes of military benefits. The parties were asked to brief Windsor‘s impact on their case and the plaintiffs have written that Windsor ends their Section 3 case, and that the language of the majority opinion also applies to the other military-related statutes which are nearly identical to Section 3 of DOMA.
There are many more cases with pending decisions, so stay tuned.
Thanks to Kathleen Perrin as always for this information and these filings