Servicemembers Legal Defense Network, the LGBT military legal advocacy group, agreed to delay its challenge to military policies that the organization says discriminate against servicemembers with same-sex spouses so that a federal appeals court can resolve two pending federal appeals challenging the federal definition of marriage in the Defense of Marriage Act.
On Wednesday, Feb. 15, U.S. District Court Judge Richard G. Stearns, a federal trial judge in Massachusetts, granted a 60-day additional delay in the SLDN case, giving the government until Apr. 28 to respond to the lawsuit filed by SLDN back in October 2011.
The move in McLaughlin v. Panetta came a day after SLDN and the Department of Justice, which represents the government defendants in the case, filed a motion with the court in which both parties agreed that they were interested in the delay.
Referring to the two cases on appeal, the parties' lawyers wrote, "The parties recognize that this case raises issues that overlap with those raised in Massachusetts v. [Department of Health and Human Services], No. 10-2204, and Gill v. [Office of Personnel Management], No. 10-2207, which are currently pending before the Court of Appeals. Resolution of those consolidated appeals will significantly impact the resolution of this case."
Gill, brought by Gay & Lesbian Advocates & Defenders, and Massachusetts, brought by Massachusetts Attorney General Martha Coakley (D), both challenge the constitutionality of the federal marriage definition, Section 3 of DOMA outside of the military context. In both cases, U.S. District Court Judge Joseph Tauro, on July 8, 2010, found Section 3 to be unconstitutional.
The government appealed the cases in October 2010. But, on Feb. 23, 2011, Attorney General Eric Holder announced, in a letter to House Speaker John Boehner (R-Ohio), that he and President Obama had decided that Section 3 of DOMA was unconstitutional when subjected to heightened judicial scrutiny, which they explained they believed was merited when laws such as DOMA's Section 3 classified people based on their sexual orientation. Such action violates, they told Boehner, the Constitution's equal protection guarantee.
Because of this decision, Holder wrote that DOJ would no longer be defending Section 3 of DOMA when it was challenged in court. Boehner and other Republican leaders who constitute the majority of the Bi-Partisan Legal Advisory Group, intervened to defend DOMA in several cases where DOJ was no longer going to defend DOMA -- including Gill and Massachusetts. All of the appellate briefs have been filed in the cases, and the parties are awaiting the First Circuit's announcement of when oral arguments will be held.
Although McLaughlin challenges two military-specific statutes and DOMA and could potentially involve other issues relating to the military-specific context, a First Circuit ruling -- affirming or reversing Tauro's decisions in Gill and Massachusetts -- would have a consequential impact on McLaughlin. And, on Nov. 18, 2011, BLAG told the court in McLaughlin that it may seek to intervene in the case, "depending on decisions to be made by the Justice Department, hopefully within the next several weeks."
Speaking with Metro Weekly on Feb. 15 about the decision to seek a delay in McLaughlin, SLDN legal director David McKean said of the agreed-upon action to delay the government's deadline for responding to the lawsuit, "Essentially, the Gill and Massachusetts cases haven't been scheduled for oral argument yet, and both of us [SLDN and DOJ] want to see where that's going, what the timeline for that will be, and so, we decided it would be in both of our best interests to see what that schedule is ... and when we might expect a decision from the First Circuit."
If the First Circuit rules in the Gill or Massachusetts cases before a trial court decision is reached in McLaughlin, then Stearns will have to abide by the First Circuit precedent that will have been set in those cases. As it stands now, Stearns is not bound by the trial decisions issued by Tauro in the cases.
Moreover, because the government has not yet had to file an answer declaring its position in the McLaughlin challenge, it appears that no action has been taken -- by BLAG or the court -- to follow up on BLAG's Nov. 18, 2011, filing about possibly seeking to intervene in the case.
Of the SLDN strategy behind delaying a case that it had previously been pushing forward quickly, McKean told Metro Weekly only, "We want our case to move as quickly as we can -- as safely as we can."
Although requests for comment from DOJ and BLAG were submitted overnight via email, no responses were immediately available from spokespeople representing either entity.
READ the joint request for delay: Joint 60-Day Stay Motion.pdf
[Photo: Servicemembers Legal Defense Network executive director Aubrey Sarvis, left, speaks at a news conference on Oct. 27, 2011, announcing the organization's filing of a lawsuit challenging the Defense of Marriage Act, as several of the lawsuit's plaintiffs wait to speak. (Photo courtesy of SLDN.)]