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And Then There Were 7: Court Receives Another Gay Marriage Case

By Robyn Hagan Cain on August 27, 2012 | Last updated on March 21, 2019

Gay & Lesbian Advocates & Defenders, a Boston-based gay rights advocacy firm, filed a petition for certiorari last week with the Supreme Court challenging the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). The case is Pedersen et al. v. Office of Personnel Management et al.

The firm, representing six married same-sex couples and one gay widower from Connecticut, Vermont, and New Hampshire, asked the Court to take the case directly from the district court in Connecticut, bypassing the Second Circuit Court of Appeals, reports SCOTUSblog. All three states recognize gay marriage.

The Pederson lawsuit challenges the federal government's denial of marriage-related benefits under the Family Medical Leave Act, federal laws for private pension plans, and federal laws concerning state pension plans, as well as the Gill v. OPM issues of federal income taxation, social security benefits, and employment benefits for federal employees and retirees

All of the couples and the widower in question were married in their home states and qualified for a particular program, but were denied those protections solely because of DOMA, according to Gay & Lesbian Advocates & Defenders.

DOMA Section 3 challenges have become commonplace in the federal appellate courts. In May, the First Circuit Court of Appeals ruled that DOMA was unconstitutional. Federal district courts in both New York and California have reached the same conclusion, and appeals are now pending before the Second and Ninth Circuits, in addition to the Supreme Court.

In the New York case, Windsor v. Bipartisan Legal Advisory Group (BLAG), plaintiff Edie Windsor has filed a petition for certiorari with the Supreme Court, but is also pursuing her appeal in the Second Circuit Court of Appeals. BLAG asked the Second Circuit to suspend oral arguments in the case because Windsor and her lawyers have already requested Supreme Court review. Windsor maintains that it's important for the Second Circuit to hear her case because it's the only appellate circuit comprised entirely of states that recognize gay marriage. The Second Circuit dismissed BLAG's challenge last week, Advocate reports.

The Pederson plaintiffs could be skipping a Second Circuit DOMA appeal because the court is already scheduled to hear Windsor's appeal on September 27. Presumably, the Second Circuit would reach the same conclusion regarding DOMA constitutionality in both cases, so a second appeal would be superfluous.

As the federal courts continue issuing DOMA rulings, it seems increasingly likely that the Supreme Court will consider the constitutionality of DOMA Section 3 -- if not marriage equality generally -- in the 2012 term. SCOTUSblog notes that six of the seven marriage equality appeals vying for Supreme Court review involve DOMA challenges.

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