WASHINGTON — The Supreme Court has set a schedule for one of the key cases in its docket for next year, requesting the first filings in a lesbian widow's challenge to the Defense of Marriage act for the day after President Obama's inauguration.
The court order also made clear the complexity of the case reaching the Supreme Court over the Defense of Marriage Act's federal definition of "marriage" and "spouse."
The court in a Friday order has separated the briefing in Edith Windsor's challenge to DOMA into two portions: one focused on the merits of the question of whether DOMA is constitutional and the other focused on the questions the court has asked regarding whether it even has the authority to hear the case.
Although two federal appeals courts have struck down the law as unconstitutional, one of which was in Windsor's case, the questions about the Supreme Court's jurisdiction to hear the case were not discussed at length in earlier hearings and have added an element of uncertainty to the case.
The first filings are slated for Jan. 22 and will come in two parts: the House Bipartisan Legal Advisory Group (BLAG), established by Republican leadership, will argue defense of the law on the merits; and Vicki Jackson, a court-appointed lawyer, will make the case that the court lacks jurisdiction.
Responses from the Obama administration, BLAG and Windsor to Jackson's arguments will be due by Feb. 20. These will be technical arguments about whether the Obama administration's decision to agree with the Windsor that the law is unconstitutional makes this no longer a case that the court can hear and whether BLAG — as a part of the legislative branch — has the constitutional ability to be a party to the case.
Then, on Feb. 22, the Obama administration's brief on the merits of the case is due. Windsor's merits brief will be due four days later, on Feb. 26.
The final briefs replying to the above arguments will be due on the merits of the case from BLAG and regarding the jurisdictional questions from Jackson or others within 30 days of the previous brief but due at the court "not later than 2 p.m. one week before the date of oral argument."
Although the date of oral argument has not yet been set, it is expected to be in late March. Additionally, the separation of arguments into different briefing calendars suggests that the oral argument itself could be separated into one section on the jurisdictional questions and another on the merits of DOMA's constitutionality. The court took a similar approach in the previous term to questions about the constitutionality of the Affordable Care Act.
In addition to the Windsor challenge to DOMA, the court also is hearing the challenge to California's Proposition 8. No additional instructions from the court about the briefing in that case have been issued, so the opening brief, which is to address both merits and jurisdictional questions, is as of now due from the proponents of Proposition 8 on Jan. 22.