Filed under: Pedersen
Supreme Court acts on DOMA, marriage equality, and same-sex benefits petitions that were held pending yesterday’s decisions
By Scottie Thomaston
Yesterday, after the Supreme Court issued its final decisions of the term, it held a conference to determine what the Court should do about the remaining petitions for review in cases related to marriage equality. Recall that although Windsor was the only DOMA case ultimately accepted for review, the Court was actually asked to hear several more challenges to the Act. And although the Prop 8 case was ultimately the vehicle chosen to discuss, possibly, marriage equality, the Court was faced with other cases.
Today’s order list by the Court resolves these DOMA cases, and addresses the petitions in the marriage and benefits cases in their early stages, without commenting on a final outcome so early in the process.
First, in the case marriage equality advocates are watching closely, after yesterday’s final decision in the Prop 8 case: the Court declined to review the petition in Nevada’s marriage equality case, filed by the proponents of the constitutional marriage ban in the state. That case, initially filed by Lambda Legal, is known as Sevcik v. Sandoval in the lower courts, and Coalition for the Protection of Marriage v. Beverly Sevcik, et al at the Supreme Court. So far, only the district court has issued a decision: the judge ruled against the same-sex couples who filed the lawsuit, using a very deferential standard of review. The plaintiffs appealed the case to the Ninth Circuit Court of Appeals, where they were awaiting briefing and arguments; then, the Coalition, the ballot initiative proponents, asked the Supreme Court to rule on the merits of a broad constitutional right to same-sex marriage. The Coalition asked the Court to rule against such a right and to do so even as the plaintiffs continued to argue that the case is much narrower. A request to review a petition before judgment is rarely granted, so it’s no surprise the Court would want to wait until there is full briefing and arguments at the Ninth Circuit.
The Sevcik case was placed on a parallel track with another marriage case, Jackson v. Abercrombie, out of Hawaii. They are both in the Ninth Circuit and both were appealed by same-sex couples who lost in the district court. The Jackson case is not at issue at the Supreme Court at this stage. Now that the petition was denied, both cases can continue. When the Ninth Circuit does hear arguments and issue a ruling, the losing party can ask the Court to review it, and that seems like a likely request in the future. It’s not clear based on yesterday’s decisions if the Court would take up another marriage case, but either way, they likely won’t see another marriage equality petition for a year.
Second, they looked at the other DOMA petitions. The Court simply denied review in the other challenges. The section of the statute at issue in all of these cases was declared unconstitutional yesterday, so it can’t be constitutional in any other situation. There are still some remaining issues, because in some DOMA challenges which have not yet reached the Court (or even an appeals court) other statutes are at stake. There are military and immigration statutes which use the same language as Section 3 of DOMA. However, yesterday’s opinion was written in a way that suggested the definitions violated both equal protection and federalism principles, so there is language which could be used in these other challenges. In denying review of the other DOMA cases, the lower courts will determine if there are any outstanding issues aside from the ones decided in Windsor yesterday. If not, the gay plaintiffs in these cases win judgment in their favor.
Another case the Court declined to review was Brewer v. Diaz. Arizona’s Governor Jan Brewer petitioned the Court to block a preliminary injunction that was preventing her from implementing a law to deny same-sex couples benefits in the state. It was in the early stages, and if they had taken it up and ruled in her favor, the state would have been able to block the benefits only while the case continued in the lower courts – there was not yet an ultimate judgment on whether the law in the state is permissible or not. Since they decided not to address the case in these early stages, same-sex couples in Arizona will receive benefits while the case works through the courts. The Court could still grant a petition if one is filed after the appeals court rules, but that won’t happen for awhile.
In short, some Ninth Circuit cases will continue, on marriage and benefits, but the only challenges left in the DOMA cases will be those in which Section 3 of DOMA and another statute were challenged, since the other statutes weren’t at issue in Windsor. And with Sevcik and Jackson at the Ninth Circuit, and DeBoer in Michigan continuing, more court action is coming soon.
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
By Scottie Thomaston
The Bipartisan Legal Advisory Group (BLAG), defending Section 3 of the Defense of Marriage Act for House Republicans, appealed the district court’s decision in Pedersen v. Office of Personnel Management in late September, a month after the Justice Department had appealed the case. Both parties have continued to file appeals in these cases to ensure that the case can legally be heard before the court: a party to the case has to be ‘aggrieved’, and there are also questions of legal standing for an ‘advisory group’ of Congress. The Justice Department has been arguing that BLAG’s standing as a legal advisory group is questionable under existing Supreme Court precedent, while BLAG has countered, in previous cases at least, that since the Justice Department got what it wanted in the district court ruling (Section 3 of DOMA was struck down) it doesn’t have legal standing to appeal a favorable ruling. (The Justice Department has said that since the Executive Branch is tasked with enforcing Section 3 of DOMA until the Supreme Court issues a final ruling, and the district court’s order prevents that from happening, it does indeed have standing.
And so, BLAG has typically asked courts to dismiss the Justice Department’s attempts to appeal district court decisions in these cases. And BLAG continues to be denied those requests: courts have consolidated the two appeals and treated them as one.
But on October 25, in Pedersen, BLAG withdrew its motion to dismiss the Justice Department’s appeal. It’s one less road block and procedural step for the Second Circuit to take before it decides Pedersen. The opening brief is scheduled for November 27, a week after the Supreme Court will have its conference to decide whether it will hear challenges to Section 3 of the Defense of Marriage Act and Prop 8. If the Court hears a challenge to Section 3 of DOMA, which is exceedingly likely, the case may be stayed pending final resolution of the constitutional question, even before the first brief is filed.
By Jacob Combs
Updated at 6:45 pm Eastern to include Pedersen brief
Yesterday, the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives, which is defending DOMA in court after the Justice Department decided not to, filed a new brief with the Supreme Court in the case of Windsor v. USA, reaffirming its position that Windsor is not the correct DOMA case for the high court to take up. BLAG’s new filing comes in the wake of the Second Circuit’s decision in October striking down DOMA as unconstitutional under the heightened scrutiny standard of review and the Justice Department’s filing last week arguing that the Supreme Court should review Windsor specifically because of its heightened scrutiny argument as opposed to Gill/Massachusetts, a combination of two cases in which the First Circuit struck down DOMA on the more deferential rational basis review.
BLAG’s argument against the Supreme Court taking up Windsor rests on three main points. The first is the issue of Edie Windsor’s standing to pursue her case in court. Windsor married her partner of several decades, Thea Spyer, in Canada in 2007. The couple resided in New York, where Spyer died in 2009. BLAG argued before the lower courts which considered Windsor that the fact that Windsor and Spyer’s marriage was granted by Canada and not New York meant that there was a question as to whether they should be considered married under New York state law at the time of Spyer’s death. If the couple were found to be considered unmarried, of course, there would be no constitutional claim against DOMA. At the Second Circuit, BLAG urged the 3-judge panel reviewing the case to ask a New York state court (the official term is ‘certify’ a question) to clarify state law on the matter.
In the Second Circuit’s ruling, the panel unanimously disagreed with BLAG’s contention, writing, “we predict that New York, which did not permit same-sex marriage to be licensed until 2011, would nevertheless have recognized Windsor and Thea Clara Spyer as married at the time of Spyer’s death in 2009, so that Windsor was a surviving spouse under New York law.” The panel based this decision on its authority to ‘predict’ state law when “faced with a question of New York law that is decisive but unsettled,” noting that although the New York Court of Appeals (the state’s highest court) had not expressly issued a ruling on the issue (expressing instead its desire that the legislature settle the matter), three of New York’s four intermediate appellate courts (including Windsor’s home department) had ruled that out-of-state marriages between same-sex couples were valid. (more…)