As result of the appeal and petition of the defendants (the Bipartisan Legal Advisory Group (BLAG) and the executive branch), the U.S. Supreme Court has scheduled a hearing of the oral arguments in the Windsor case on March 27.
Firstly, there are Article III standings issues. Vicki C. Jackson, a Harvard law professor, filed a brief with the U.S. Supreme Court last Thursday. She argued that the court does not have jurisdiction to hear the challenge to the Defense of Marriage Act (DOMA) brought on by Windsor’s case because of DOMA’s lack of standing.
As Associate Professor of Law Mathew I. Hall points out,
“No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing. If the Court so holds—as it should—its decision will have repercussions for Edith Windsor and dozens of other litigants with DOMA cases pending in lower federal courts. And the Court’s handling of the standing question may also have enduring significance for the law of legislative standing and constitutional separation of powers.
Article III’s limitations on federal jurisdiction apply to legislators and legislative institutions just as surely as they apply to other litigants. In particular, legislative litigants must establish “standing” by showing that they have a personal stake in the outcome of a case … BLAG has not claimed to possess an interest of its own in defending DOMA; rather, it has professed to represent: (1) the interest of the United States in defending a federal law when the executive has “abdicated [his] constitutional responsibility” to do so, and (2) the interest of the House of Representatives “in defending the constitutionality of its legislative handiwork.””
These reasons cannot support standing. In regards to the first rationale, Congress does not have the authority to present the interests of the U.S. in litigation, unless authorized by a statute. And in regards to the second rationale, legislative committees—BLAG—cannot represent a chamber of Congress unless it has explicit authorization from that chamber. DOMA has not been defended and the House has not delegated BLAG. Hall concludes, “If the BLAG lacks standing … then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case.”
Additionally, the United States Conference of Catholic Bishops (USCCB) has filed an amicus briefs in support of DOMA and California’s Proposition 8.
According to the USCCB, a decision invalidating Proposition 8’s definition of marriage would have adverse consequences. The USCCB, in a brief in the case of Hollingsworth v. Perry, stated that “redefining marriage—particularly as a matter of constitutional law, rather than legislative process—not only threatens principles of federalism and separation of powers, but would have a widespread adverse impact on other constitutional rights, such as the freedoms of religion, conscience, speech, and association.”
The USCCB’s disagreeable brief in United States v. Windsor claims that “there is no fundamental right to marry a person of the same sex.” The USCCB argues that sexual orientation is not a classification for the courts to adopt a heightened scrutiny standard of review, as was done in the case and as they would with race or ethnicity. It further claims that the “the treatment of such relationships as marriages [cannot] be said to be implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” The USCCB blatantly urges the Supreme Court to deprive same sex spouses of recognition for their marriage while it claims that “the union of one man and one woman” is a “fundamental right.”
The question of DOMA’s constitutionality remains as Windsor’s battle continues on March 27th.
A more detailed discussion of the Article III standing issue is available on The Advocate and Stanford Law Review. More information about the Catholic Bishops brief is available on The Catholic World Report.