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Supreme Court appoints lawyer to argue that neither House Republicans nor the Justice Department have legal standing in DOMA case

DOMA trials Windsor

By Scottie Thomaston

The Supreme Court has appointed a lawyer, Professor Vicki C. Jackson of Harvard Law, to argue in United States v. Windsor, challenging Section 3 of the Defense of Marriage Act, that neither the Bipartisan Legal Advisory Group (BLAG) (who is defending the law on behalf of House Republicans) nor the Justice Department (who stopped defending the law in February 2011) have legal standing to appear in court and so the Supreme Court has no authority to hear the case.

The Court added the jurisdictional question in its grant of review on Friday. Both parties have opposing views on their right to appear in court. SCOTUSBlog writes:

The Court presumably reached beyond the two parties in the DOMA case for a lawyer to argue the procedural points, since the parties themselves disagree. The federal government has been willing to allow the House GOP leaders to be in court to defend DOMA’s constitutionality, since the government is no longer doing so, but has raised questions about whether the Republican leaders’ petition is the one the Court should consider on DOMA. In turn, the Republican leaders have contended that, since the government got its way in the Second Circuit Court, it is not a proper party to be appealing this case on DOMA.

They also note that this will likely extend the argument time beyond the usual one hour, something many had begun to speculate on already given the importance of the issues and national interest in these cases.

The Court had an opportunity to do the same in the Prop 8 case, since in Friday’s grant they added a jurisdictional question there as well, but they did not issue an order in that case.

The Supreme Court sometimes invites lawyers to argue certain legal issues as amicus when no party to the case wants to argue specific positions. This way the Court can hear all the different sides and decide which way it should decide the legal issues at stake. If the Court were to decide that neither BLAG nor the Justice Department have legal standing to be in court, the case would be dismissed.

40 Comments

  • 1. nicksternet  |  December 11, 2012 at 12:02 pm

    Just as I suspected–Another way to avoid confronting gay people as equal! Typical cowards!

  • 2. Str8Grandmother  |  December 11, 2012 at 12:20 pm

    This is very interesting. I'll have to go look up that lawyer they appointed. And so soon after accepting the case. Hmmm something is afoot at SCOTUS, combined with Scalia's absolutely bigoted remarks yesterday, it makes for interesting observation.

  • 3. Scottie Thomaston  |  December 11, 2012 at 12:22 pm

    Well I'm sure they just wanted to appoint her soon after accepting the case so she would have time to research the arguments.

  • 4. Larry  |  December 11, 2012 at 12:29 pm

    Presumably if the Supreme Court finds that BLAG and the Justice Department don't have standing to appeal, BLAG wouldn't have had standing to appeal to the 2nd Circuit. But there would have been standing for Windsor to sue at the district level and the district court struck down DOMA. The same logic would apply to the other district court decisions that struck down DOMA (Pederson, Golinski, Dragovich, Gill, etc.). It's impractical for DOMA to be in force nationwide except in Manhattan and the northern suburbs of NYC, Connecticut, Massachusetts, and the greater San Francisco area. So wouldn't that mean that DOMA was effectively gone? When the district court struck down DADT, that was a nationwide ban, not just for that portion of California. The downside would be that there's still no clarity on what standard of review is appropriate, though a decision striking down DOMA could easily be written that it doesn't satisfy rational review and avoid the issue altogether.

  • 5. _BK_  |  December 11, 2012 at 12:35 pm

    The question I have is, what if they somehow decide neither BLAG nor the DOJ have standing?

  • 6. Str8Grandmother  |  December 11, 2012 at 12:38 pm

    Yes but this most likely shows that the Standing issue is a very big issue for them. My guess is that some faction of the Court pushed this through, a separate lawyer as part of their deliberations on granting Cert. I think that they had this all set up and got the Harvard Atty cleared logistically. Do you think they called her BEFORE they announced Cert? Or did all this happen over the week-end and yesterday? How did they pick her out of all the millions of lawyers in the United States?

    I would love to be a fly on the wall, that is for sure.

  • 7. Str8Grandmother  |  December 11, 2012 at 12:40 pm

    Larry, this is already getting very interesting. Thank you for your analysis. I enjoyed reading it.

  • 8. Scottie Thomaston  |  December 11, 2012 at 12:46 pm

    If no one has standing there couldn't be a decision on the merits of the case.

  • 9. sfbob  |  December 11, 2012 at 12:49 pm

    If the court could not decide on the merits of the case that would then bind the Second Circuit's ruling, would it not? But only within the Second Circuit. So DOMA would be dead in some places and alive in others. And this would help…how?

  • 10. Jamie  |  December 11, 2012 at 1:05 pm

    The Supreme Court isn't there to help anyone. They are there to decide constitutional issues when there is a controversy.

  • 11. Jamie  |  December 11, 2012 at 1:10 pm

    Evidently the government doesn't mind if the law is applied differently based on location, as that was always a possibility when the Administration and Congress chose to stop defending the law.

    I have no doubt that the Supreme Court could easily say that this is the situation that the government created, and it's not proper for them to expect the court to clean it up.

  • 12. Evan  |  December 11, 2012 at 1:22 pm

    True, but this has the smell of an attempt to get out of deciding anything….

  • 13. Str8Grandmother  |  December 11, 2012 at 1:37 pm

    Well then Obama can make a decision to STOP ENFORCING DOMA. He can order his Justice Department and the IRS to stop prosecutiong gay couples who file joint taxes. Maybe as the Commander in Chief he can order the Military Branches to treat the spouses of gay and lesbian services members as they treat the spouses of straight service members. Obama could simply stop ENFORCING DOMA if the Supreme Court refuses to decide.

  • 14. New  |  December 11, 2012 at 1:48 pm

    If SC doesn't have to decide on the merits of the DOMA case for lack of legal standing, couldn't the decision come earlier than June of 2013? Wouldn’t it be decided right after the oral arguments in March?

  • 15. Jamie  |  December 11, 2012 at 2:18 pm

    He actually could do that, and then it would be up to BLAG or whoever else thought they had standing to sue the Administration and force them to start enforcing DOMA again. This is the way our Government was intended to function with a balance of powers.

  • 16. Jamie  |  December 11, 2012 at 2:21 pm

    I think it's possibly an attempt to make our government work the way it was intended to function based on the Constitution.

    In the end, the outcome will likely be the same. It's just a question of how big a push the Supreme Court is going to take in order to get the ball rolling.

  • 17. Jamie  |  December 11, 2012 at 2:24 pm

    Not likely. The Court will look at the standing issue and the merits at the same time.

  • 18. frank  |  December 11, 2012 at 2:27 pm

    I always said O's decision to not defend DOMA could cause a big problem. If justices find BLAG is not valid, we could have to start all over again with new cases that DOJ does defend in court….to get this back to SCOTUS, where it belongs.

  • 19. Steve  |  December 11, 2012 at 2:51 pm

    This would be very awkward. Federal laws are supposed to be uniform. A patchwork application like that – similar to a circuit split – is something SCOTUS is supposed to prevent.

  • 20. Anthony  |  December 11, 2012 at 3:10 pm

    If they didn't want to decide anything, why the hell did they even take the Prop 8 case?

  • 21. Anthony  |  December 11, 2012 at 3:10 pm

    Has that ever happened before? What would happen to gay couples in other parts of the country? Would they have to sue to get DOMA overturned?

  • 22. Eric  |  December 11, 2012 at 6:50 pm

    They may not be deciding on what you want, but they would decide on standing, precluding future nonsense from the House.

  • 23. Eric  |  December 11, 2012 at 6:55 pm

    DoJ has stopped defending other laws in the past, those laws didn't go to SCOTUS.

  • 24. janet bratter  |  December 11, 2012 at 9:05 pm

    Ceasing to enforce DOMA would not remove it from the books however. Having it ruled unconstitutional is the only way we can be guaranteed equal treatment under the law.

  • 25. Mike in Baltimore  |  December 12, 2012 at 1:23 am

    The District Court did strike down DADT, but then Congress repealed DADT, mooting any cases then in process or being appealed. Thus no other court had an opportunity to speak on the issue. It is possible (though not probable) that a Circuit Court or SCOTUS would have told the District Court that it's ruling was incorrect.

  • 26. Mike in Baltimore  |  December 12, 2012 at 1:32 am

    Most likely because no one had standing to even get them into a Federal District court.

    Remember, SCOTUS can't rule on a case unless the case is properly appealed to them.

  • 27. JimF  |  December 12, 2012 at 6:01 am

    Are we supposed to pretend that all of the justices have not already made up their minds about how they're going to rule?

  • 28. nicksternet  |  December 12, 2012 at 6:16 am

    This is an absolute travesty of justice and a joke. I stand by my original comment. Jerry Moonbeam is to blame. He should have defended the stupid law, and Olson and Boies are responsible, as well, for not consulting with Monnbeam about standing! So much for the 'smart" attorneys on our side!

  • 29. Larry  |  December 12, 2012 at 6:36 am

    Would it have helped if Schwarzenegger and/or Brown had defended Prop 8 ineffectually? Before the Justice Department changed positions, they were criticized for homophobic briefs supporting DOMA.

    Now the Justice Department is technically defending and appealing DOMA (because they were injured by the decision striking DOMA down) while at the same time arguing it's unconstitutional. The Supreme Court seems to have seen through this and is asking why the Justice Department would have standing if they think the law is unconstitutional and essentially won at the lower level. I imagine SCOTUS would be doing the same if Governor Brown was defending Prop 8 in court while saying he thought it was unconstitutional.

  • 30. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 1:36 pm

    [...] agreement with the decision below deprives the Court of jurisdiction to hear the case, the Court recently appointed an attorney to argue as amicus curiae (“friend of the court”) against jurisdiction. Her brief [...]

  • 31. Prop 8 Trial Tracker &raq&hellip  |  January 7, 2013 at 10:11 am

    [...] when the Court appointed an outside lawyer to argue against the Court’s jurisdiction in the DOMA case, there was speculation that [...]

  • 32. Prop 8 Trial Tracker &raq&hellip  |  January 8, 2013 at 10:23 am

    [...] is defending the law on behalf of House Republicans has Article III standing to do so. The Court appointed an outside attorney to argue against the Court’s authority to hear the Justice Department’s claims and against BLAG’s [...]

  • 33. Equality On Trial »&hellip  |  January 24, 2013 at 5:59 pm

    [...] Court-appointed attorney – Professor Victoria C. Jackson – has filed her brief in United States v. Windsor. [...]

  • 34. Equality On Trial »&hellip  |  February 22, 2013 at 11:38 am

    [...] to the Court-appointed amicus in United States v. Windsor are starting to come in. The Court appointed an attorney to argue against jurisdiction and Article III standing in the challenge to Section 3 of DOMA, since the [...]

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  • 36. Equality On Trial »&hellip  |  March 4, 2013 at 6:37 am

    [...] to address some initial questions related to Article III standing and jurisdiction. And the Court appointed an outside attorney as amicus curiae to take the position that the Bipartisan Legal Advisory Group (BLAG) who is [...]

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