Harvard law professor Vicki Jackson [academic profile] argued in a brief [text, PDF] filed Thursday that the US Supreme Court [official website] does not have the power to review the constitutionality of the federal Defense of Marriage Act of 1996 (DOMA) [text, PDF; JURIST news archive]. Upon agreeing to review the constitutionality of DOMA's Section 3 in United States v. Windsor [docket; JURIST report], the court invited Jackson's argument on its authority to do so. The brief first examines whether the Obama administration can appeal a case that it had already won in a lower court, which held that DOMA is unconstitutional. The brief suggests that the only reason for the administration's appeal is a desire to obtain "a precedent from a higher court." However, that is not enough to satisfy Article III. Because the dispute has already been resolved, the federal government "offers no concrete injury to its legal interests ... sufficient to invoke the jurisdiction of this Court." The brief also addresses whether the House's three Republican leaders can satisfy the Constitution's Article III requirement that they have the legal standing to be DOMA's defenders in court. Jackson argues that, "because the generalized interest in the constitutionality of its statutes does not confer standing on Congress or its members, this Court's caselaw has upheld legislative standing only in situations where there is a concrete threat to the institutional prerogatives of the legislature or to the personal rights of its members." Even if the legislators could circumvent this issue, the professor claims, the interest in constitutionality "would belong to the entire Congress, not just one house. Accordingly, both houses would have to assert that injury by moving to intervene" in court. Both the Obama administration and the House leaders will be given the opportunity to file briefs next month to address Jackson's arguments.
The case of United States v. Windsor concerns Edith Windsor [ACLU backgrounder], a widow who had a legal same-sex marriage under Canadian and New York law but was denied spousal deduction for federal estate taxes when her wife died. Prior to her challenge, the US Department of Justice (DOJ) announced that it would no longer defend DOMA in courts, and in response, the US House of Representatives formed [JURIST reports] the Bipartisan Legal Advisory Group (BLAG) to defend the law. In July 132 members of the US House of Representatives [official website] filed an amicus brief [JURIST report] arguing that statutory classifications based on sexual orientation should be subject to heightened judicial scrutiny and that DOMA should be overturned as unconstitutional under any level of judicial scrutiny. The brief was filed in the appeal of Karen Golinski v. Office of Personnel Management, the landmark case in which the US District Court for the Northern District of California [official website] ruled that DOMA is unconstitutional [JURIST report]. In June 10 US senators filed their own amicus brief in the case, arguing in the opposite [JURIST report] that the federal government had a legitimate interest in creating a uniform federal definition of marriage to "[avoid] massive legal uncertainty."