SCOTUSblog reports on the latest DOMA wrinkle:
The Supreme Court does not have the power to rule on the case the Justices have agreed to review on the constitutionality of the federal Defense of Marriage Act of 1996, a Harvard law professor argued in a brief filed Thursday evening. The professor, Vicki C. Jackson, also argued against letting the Republican members of the House of Representatives’ leadership defend DOMA’s validity, saying they do not speak for Congress, or even for the House.Chris Geidner has more analysis at Buzzfeed:
If the Court accepts this advice, it probably would miss its chance to rule during the current Term on DOMA’s Section 3, which defines marriage for all federal purposes as the union of one man and one woman. It has been challenged by same-sex couples who are legally married, as they seek the federal benefits at issue. There is not time, in the remaining months of the Term (unless the Court would really rush things), for review of another DOMA case, even though others are pending.
The Court on December 7 agreed to review the constitutionality of Section 3 in the case of United States v. Windsor (docket 12-307). At the same time, however, it added questions about its authority to do so and then invited Professor Jackson to argue two points: One, whether the Obama administration can appeal a case that it won in a lower court (it believes DOMA is unconstitutional, and the lower court ruled that way). And, two, whether the House’s three GOP leaders could satisfy the Constitution’s Article III requirement that they have a legal right to be DOMA’s defenders in court.
In discussing why the House Bipartisan Legal Advisory Group — the 3-2 Republican majority of which voted to take up the defense of DOMA after the administration's 2011 decision to stop defending the law — does not have the authority, or standing, to be there, Jackson argued: "It is the Executive Branch, not Congress, that is obligated to "take Care" that laws are enforced. Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert." The Supreme Court appointed Jackson to argue these positions because, presumably, the justices decided they wanted a view outside of the views presented before lower courts on these questions. By the terms of that appointment, then, it was expected that Jackson would be arguing these views.