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to Section One | to Arts & Entertainment
posted Friday, December 14, 2012 - Volume 40 Issue 50
Reading the tea leaves - What will the Supreme Court do about DOMA?
Section One
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Reading the tea leaves - What will the Supreme Court do about DOMA?

by Mike Andrew - SGN Staff Writer

The U.S. Supreme Court may have dropped a hint about its thinking on DOMA when, on December 11, it asked Massachusetts attorney Vicki Jackson to file briefs in U.S.A. v. Windsor.

Jackson was not asked to offer arguments on the constitutionality of the law that prohibits federal recognition of same-sex marriages, however. Instead, she will argue that the Supreme Court cannot take up the case at all.

Jackson has specifically been charged by the court to argue 'that the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this [Supreme] Court of jurisdiction to decide this case.'

STANDING AT ISSUE
She has also been asked to argue that House Republicans cannot substitute themselves for the Justice Department and therefore they lack 'standing in this case.'

Both issues arise from the February 2011 decision by President Obama and the U.S. Department of Justice that the federal Defense of Marriage Act (DOMA) is unconstitutional and could no longer be defended in court. The Republican-controlled House then stepped in, ordering its Bipartisan Legal Advisory Group (BLAG) to defend the law. Last week, the Supreme Court agreed to hear the Windsor case and Hollingsworth v. Perry, which challenges California's Prop 8. The question of standing is relevant in both cases.

For the Supreme Court to have jurisdiction in a case, there must be a real dispute with real-world consequences for one or both parties.

Obviously the plaintiff, Edith Windsor, will suffer real harm if her marriage to her late wife is not recognized - she will likely be out some $360,000 in inheritance taxes. Therefore, she indisputably has standing to challenge the law. But DOJ has determined that the U.S. government will suffer no harm whatsoever if DOMA is overturned. In fact, that would be the desirable outcome as far as DOJ is concerned.

What harm would House Republicans suffer if Gay and Lesbian marriages were recognized under federal law? In other words, do they have standing to defend DOMA before the Supreme Court when the executive branch refuses to do so?

If the court decides that it lacks jurisdiction in the case, or that the House Republicans have no standing to argue for DOMA, they do not even need to hear discussion on the merits. In that event, previous Circuit Court decisions striking down DOMA would stand, but probably could not be applied broadly to the whole country.

RULING COULD BE NARROW
Legal observers almost universally agree that this would be a conveniently narrow ruling for the court to make, one that might attract even some conservative justices and produce something more authoritative than a mere 5-4 decision - but that it would make for bad law.

Writing on ThinkProgess.org, Center for American Progress senior analyst Ian Millhiser said that 'if the justices decide they lack jurisdiction to hear the DOMA appeal, things could get ugly fast.'

'Striking DOMA only in a few states would not simply deny same-sex couples their basic constitutional rights, it would also be an administrative nightmare,' Millhiser worried.

Although federal agencies like the IRS, the Social Security Administration, and the Department of Labor routinely cope with substantial differences in how individual states define marriage - in particular, common-law marriages and community property issues - Millhiser foresees even more complications if the Supreme Court declines to issue a definitive ruling on DOMA.

Scott Lemieux, an assistant political science professor at the College of St. Rose, agrees with Millhiser. In an American Prospect article on DOMA, he writes, 'I'm inclined to think the Court should interpret standing loosely and hear serious constitutional arguments if at all possible.'

A BAD PRECEDENT?
Lemieux says that 'it would be a problematic precedent if [denying House Republicans standing] was interpreted as denying anyone the opportunity to defend the government's law in court,' because it would essentially give future administrations power to cancel laws they disagreed with for ideological reasons, simply by refusing to defend them against legal challenges.

Lemieux added that he thinks it likely the court will decide to rule on the merits of the DOMA case, because neither of the court's ideological factions would be satisfied with a narrow decision based on standing alone.

'With the possible exception of Chief Justice Roberts, the conservative justices who are most sympathetic to narrow standing rules are vanishingly unlikely to join any opinion that results in same-sex marriage being legalized...' he writes.

'The more liberal justices who would like the result of denying standing have no reason to prefer that to ruling on the merits unless there's no other way of getting a fifth vote.'

The Supreme Court is expected to hear oral argument in the Windsor case next spring.

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