Filed under: Pedersen
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.
By Scottie Thomaston
With the Supreme Court conference on the eight petitions related to challenges to Section 3 of the Defense of Marriage Act as well as Proposition 8 and Arizona’s denial of domestic partnership benefits to same-sex spouses approaching on Friday, the lower courts are busy with requests to delay arguments or stay cases related to Section 3 of DOMA pending possible Supreme Court review. If the Court takes up one (or more) of the cases, it will effectively decide the outcome of the others currently winding through the district and circuit courts. The Bipartisan Legal Advisory Group (BLAG), tasked with defense of the law, has begun requesting cancellation of oral arguments in some cases and stays in others. The Justice Department, though it agrees that Section 3 of DOMA is unconstitutional, is doing the same.
In Cardona v. Shinseki, a challenge to Section 3 of DOMA, as well as another statute related to military benefits, by a military servicemember, oral argument was set for November 15 at the appeals court, in this case the US Court of Appeals for Veterans’ Claims. The case has been on an expedited track – sped up by the government’s decision to stop defending Section 4 of DOMA. (In this case, they are not defending the other statute at issue here, either.)
Secretary Shinseki then requested rescheduling oral argument to November 29, facing objections from Cardona, the plaintiff. Despite the fact that the case is on an expedited track, the judge granted that motion.
On November 8, BLAG filed a motion to postpone oral argument in the case (opposed by the plaintiff) and the judge has granted the order. Cardona, in her opposition, argued that, “(1) the Court expedited this matter and has previously granted a motion to postpone oral argument, (2) regardless of whether the Supreme Court grants certiorari in a case involving DOMA, her case involves the constitutionality of 38 U.S.C. § 101(31), which this Court must still address, (3) BLAG was aware of the pending petitions for certiorari when the Court set oral argument for November 29, (4) it is uncertain when the Supreme Court will announce its decision to grant or deny certiorari on these petitions, and (5) further delay will burden her because she already has requested time off from work and purchased non-refundable airplane tickets to attend the November 29th argument, and the continued deprivation of spousal benefits causes an economic hardship on her family[.]”
But the judge agreed that the Supreme Court is likely to resolve the issue of the constitutionality of Section 3 of DOMA, and in the interest of “judicial efficiency” the argument is canceled. The judge suggested that the case may be stayed once the Supreme Court decides on whether to review Section 3 of DOMA and releases orders from its November 30 conference: “if the Supreme Court grants a petition for writ of certiorari, this case may also be stayed pending the issuance of its decision considering the constitutionality of DOMA.”
Pedersen v. Office of Personnel Management is currently pending at both the Second Circuit Court of Appeals and at the Supreme Court on a petition for a writ of certiorari before judgment, and the Justice Department is asking the court to suspend the briefing schedules and hold the case in abeyance pending a decision by the Supreme Court on whether to hear challenges to Section 3 of DOMA. In this case, BLAG consents to the request, while the plaintiffs do not oppose the request insofar as it would hold the appeal in abeyance pending whatever happens at the November 30 Supreme Court conference. However, plaintiffs “oppose holding these appeals pending final resolution by the Supreme Court if the Supreme Court were to grant one or more of the petitions filed in any of the cases challenging the constitutionality of Section 3 of DOMA.”
If the Court does decide to hear challenges to the constitutionality of Section 3 of DOMA, we are likely to see many more of these requests.
h/t Kathleen as usual for these filings
ORDER – Cardona:11-3083 #177
DOJ request – Pedersen:12-3273 #109
By Scottie Thomaston
In Windsor, recall that the Justice Department had noted in a reply brief that it would soon take further action after the Second Circuit held Section 3 of the Defense of Marriage Act unconstitutional in the case. Their initial petition for certiorari was filed before judgment at the court of appeals so the Justice Department filed a supplemental brief asserting that Windsor is now the most appropriate vehicle to review challenges to Section 3 of DOMA, and the Court should review the Second Circuit’s decision instead of the district court’s.
In its latest reply brief, the Justice Department continues to assert that Windsor is the best case to review. “BLAG finds “mystifying” that the government, which had previously suggested that the state-law status of plaintiff’s foreign marriage was a cause for hesitation, no longer thinks so,” they write, referring to Edith Windsor’s Canadian marriage. But they point out that the Second Circuit addressed the claims that Windsor lacks legal standing and they unanimously rejected them. The Court typically defers to state law judgments if the district court and the appeals court agrees on the judgment, as happened here, and BLAG “has yet to come forward with a single reason why New York’s highest court would reach a different conclusion or why this Court should disturb the consistent state-law interpretation reached by every other court to have decided the issue.”
In terms of the fact that the Justice Department petitioned the Court to review the case ahead of the decision at the Second Circuit, they write that the timing is no impediment. “Notably, BLAG provides no affirmative reason why this Court would lack authority to consider the government’s petition, nor does it contend that the Court is foreclosed from doing so. Rather, BLAG relies on the fact that the government cites only one prior example (i>General Elec., supra) of this procedural circumstance. But that is entirely unsurprising: the situation in which a party files a petition for certiorari before judgment, but the court of appeals issues a judgment before the Court has considered that petition, by nature arises exceedingly infrequently.”
The Justice Department asks the Court to grant the Windsor petition first, suggesting, “[i]n particular, the court of appeals in Massachusetts was constrained by binding circuit precedent as to the applicable level of scrutiny, No. 12-15 Pet. App. 10a, whereas the court of appeals here was not so constrained, and its analysis may be beneficial to this Court’s consideration of that issue.” The DOJ asks the Court in the event that Windsor is deemed inadequate to grant its petition in Golinski from the Ninth Circuit Court of Appeals, or Pedersen another Second Circuit case.
When the Bipartisan Legal Advisory Group (BLAG) responded to the petitions in Pedersen, it suggested that part of the IRS code might mean that the plaintiffs lack standing (because it could be read to also suggest marriage is between a man a woman, meaning Section 3 of DOMA would not be the only statute injuring them; and no challenge to that particular law was brought.) In its reply the Justice Department points out that only a few out of thirteen plaintiffs are seeking the type of claims that could fall under that statute, so the issue does not affect whether the Court can hear the challenge – as long as some plaintiffs have standing, it can.
As it has suggested before, the Justice Department continues to press that as Executive Branch defendants, judgment was entered against them in the lower court, thus they have standing to appeal. It also continues to press “the principal justification for the government’s petition in this case: to ensure that this Court can timely and definitively resolve Section 3’s constitutionality.” Fighting off claims that it could have petitioned the Court to hear this case years ago, they state that, “the first court of appeals decision holding that Section 3 violated the Fifth Amendment’s guarantee of equal protection was issued on May 31, 2012. That recent development significantly changed the landscape of DOMA litigation, which has continued to advance quickly and has produced similar holdings in every court to have considered the issue since, including the Second Circuit’s decision in Windsor.” And last, the Justice Department writes that changing the briefing schedule in the case would not be complicated, and it points to past instances in which that happened, like Department of Health and Human Services v. Florida, one of the challenges to the Patient Protection and Affordable Care Act.
In its Massachusetts reply brief, addressing the Spending Clause and Tenth Amendment violations alleged by the state of Massachusetts in regards to Section 3 of DOMA, the Justice Department writes that the Court could hear these arguments whether or not it takes up the petition, and that either way, it should reject them.
Interestingly, the Justice Department argues that federally, “who counts as married” is important, at least in a narrow way: “Although domestic relations and the incidents of marriage have fallen largely within the realm of state regulation, “Congress surely has an interest in who counts as married” for purposes of federal benefit programs. Pet. App. 15a. As the court of appeals recognized (id. at 16a), moreover, “section 3 governs only federal programs and funding, and does not share the two vices of commandeering or direct command.” But for its violation of equal protection, Section 3 would be a proper exercise of the Congress’s Spending Clause power. See pp. 7-8,
supra.The Commonwealth’s Tenth Amendment claim thus fails.”
In its reply brief in Golinski, the Justice Department reiterates the points it made in the other briefs: (1) it has standing to seek review (2) granting this petition would not complicate the briefing process (3) review is warranted to ensure a timely review of the issues.
These cases, along with the Prop 8 case, are scheduled for the November 30 conference at the Supreme Court, where they could decide whether to take up any of these petitions.
h/t Kathleen, as always, for these filings
DOJ reply in Windsor:12-307 #9
DOJ reply in Pedersen:12-302 #6
DOJ reply in Massachusetts:12-15 #8
DOJ reply in Golinski:12-16 #9