A Tale of Two Gay Marriage Litigations: To Stay or Not to Stay?

While Perry and the Prop 8 litigation has been getting most of the attention in the media and blogosphere, the Massachusetts District court decisions in Gill v OPM and Massachusetts v. Dep’t of Health & Human Services striking down parts of the Defense of Marriage Act  are in some ways the more interesting (and if upheld more meaningful) decisions.  Today, though, I noticed reporting that Gay & Lesbian Advocates & Defenders (GLAD) the Massachusetts-based gay rights group that ligated Gill among many other major LGBT rights cases (including the MA gay marriage case, Goodrich) had agreed to stay the ruling while the DOJ decided whether to take an appeal.  I thought this was an interesting contrast to Boies and Olson’s decision to fight the stay of Perry at each stage.  Of course there are a number of legal differences between the cases — in the press release GLAD points to not wanting to have to pay back benefits if the decision is overturned and  there is a possibility that the Obama administration may relent in its opposition to the suit — but I find the strategic/political perspective even more intriguing here.  Would Olson and Boies have been perceived to have let down their backers if they did not fight the stay, whereas as more institutional repeat player like GLAD has already built up significant goodwill?  Are there good strategic reasons why the Perry litigators want to try and accelerate their litigation while the Gill ones want to maintain the typical pace, or is this instead a matter of the litigators’ own interests?  Are Boies and Olson more confident of a good reception than the Gill lawyers at the Supreme Court now, and are they right to be?  Which case is the one someone supportive of these efforts should want to see get to the cert stage first?  How does the standing to appeal issue in Perry fit in to the calculation?  Part of it may also just be a reflection of the slowness of the 9th Circuit’s typical docket as compared to the lithe 1st Circuit, such that even with the stay acceleration in Perry the Gill case gets resolved first.  Lots of questions and few answers, but I thought others might have interesting thoughts…

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2 Responses

  1. Simon Kissane says:

    I think one difference is that allowing equal marriage in California again will create visible and high-impact facts on the ground that one might think would benefit the cause of marriage equality. On the other hand, the impact of overturning DOMA is less visible / high-impact, so fighting the stay is less likely to benefit the overall the cause. Wedding bells make good media, benefit checks not so much.

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