The Second Circuit has just denied the request by the Bipartisan Legal Advisory Group (BLAG), who is defending Section 3 of DOMA on behalf of House Republicans, to halt oral argument in Windsor v. USA. House Republicans had asked the court to put arguments on hold because:
they “anticipate” the Supreme Court will decide whether to review the case fairly soon after oral argument at the Second Circuit. “[I]t is likely,” they write, “that the Supreme Court will act on the above petitions – including the petition in this case – in early October, a very short period of time after September 27, when oral argument in this case currently is scheduled."And Windsor, in her reply brief, told the court that, it is:
“vitally important that the Second Circuit be heard on this issue and be heard as expeditiously as possible in order to ensure that legally married same-sex couples in New York, Connecticut, and Vermont are protected from the daily unconstitutional burdens and indignities imposed by DOMA” and “this Court may provide important guidance to other courts throughout the country (as well as the Supreme Court) on the appropriate level of scrutiny for laws that discriminate on the basis of sexual orientation.”
Today's order could have implications for another Second Circuit case challenging DOMA, Pedersen v. OPM:
Another case in which DOMA was struck down by a district court, Pedersen v. OPM, which was filed in Connecitcut, has also been appealed both to the Second Circuit with a request for an expedited appeals schedule and directly to the Supreme Court. BLAG could seek a suspension of Second Circuit argument in that case as they did in Windsor, although given today’s order it would appear that such a petition would have limited success.In a letter filed at the Second Circuit, Windsor had told the court that given the Pedersen petition for certiorari to the Supreme Court, it is unlikely that the Court would hold a conference to decide on all the DOMA-related petitions until October 26. Therefore, oral argument at the Second Circuit would take place a full month before the Court even considered all the petitions. BLAG countered that the Court could decide on the petitions that were filed earlier on October 5.
Judges have denied several attempts by House Republicans to put challenges to Section 3 of DOMA on hold. The district court judge in Pedersen denied their request for a stay after the case had been fully briefed. Then, the judge in Cooper-Harris v. USA denied BLAG's request to stay the proceedings in that case, though BLAG was relentless in trying to halt that challenge. The Ninth Circuit did cancel oral argument in Golinski v. Office of Personnel Management, but it kept the briefing schedule in place.
House Republicans have tried to stall these challenges every step of the way. In their opening brief in at the Second Circuit in Windsor, they argue that the appeals court should certify the question of whether Windsor's legal Canadian marriage would have been recognized in New York to the New York Court of Appeals. In Pedersen, the plaintiff wants the case expedited but only the Justice Department has appealed, and if the pattern holds, BLAG will likely move to dismiss the DOJ appeal for lack of standing. The only petition for certiorari that BLAG has currently filed is in the Gill/Massachusetts case, and it has asked the Supreme Court for an extension of time to file replies to the other petitions, which they granted. Their replies in those cases are due August 31.
Oral argument at the Second Circuit in Windsor v. USA will be held on September 27 in New York City.
Thanks to Kathleen Perrin for passing along all these filings