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U.S. Supreme Court asks Harvard law professor to argue DOMA question

Tuesday, December 11, 2012

The Supreme Court on Tuesday chose a Harvard professor of constitutional law, Vicki C. Jackson, to argue that the Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act. 

She will file a brief and appear to argue the two procedural issues that the Court itself had raised in agreeing last Friday to consider DOMA’s validity.

Vicki C. Jackson

Jackson, who joined the Harvard faculty last year after several years at the Georgetown University Law Center, will contend that the executive branch’s agreement with a lower court that DOMA is invalid takes away the Justices’ authority to rule on DOMA, and that the House of Representatives’ Republican leaders do not have a right to appear in the case under Article III of the Constitution.

The professor will appear in the case as an amicus to make only those points, not to join in the debate over the constitutionality of DOMA, which the Court also will be considering.  (Professor Jackson’s resume at Harvard is here.)

When the Court accepted for review two cases on the same-sex marriage issue, it added questions to each on issues about its authority to rule.   The second granted case involves the constitutionality of California’s “Proposition 8,” withdrawing the right of gays and lesbians to marry in that state.  In that case, the Court also will be considering whether the proponents of “Proposition 8″ as a ballot measure have a right under Article III to appeal a lower court decision striking down that measure.

With the addition of Professor Jackson to the DOMA case, it appears likely that the Court will expand the argument time for that case beyond the usual one hour.   It is unclear when the Court will announce an argument schedule for the new marriage cases.

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.  Professor Jackson, a neutral, will argue against both as the proper parties.   The DOMA case that the Justices accepted for review is United States v. Windsor (docket 12-307).

The Court did not issue a similar order on the procedural question in the “Proposition 8″ case.  Presumably, the two sides will be making arguments in opposition to each other on that point when they brief and argue that case.  That case is Hollingsworth v. Perry (docket 12-144).

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17 more reader comments:

  1. Yeah, SCotUS piss on the Constitution a little more why don’t you?

    Posted on Tuesday, December 11, 2012 at 4:41pm
  2. Can’t be good.

    Posted on Tuesday, December 11, 2012 at 4:43pm
  3. Seems as if they wish to dismiss the DOMA case and rule on the Prop 8 case, that same-sex marriage is a Constitutional Right. Thus overturning DOMA in its entirety.

    Posted on Tuesday, December 11, 2012 at 4:50pm
  4. Anyone know which attorneys are arguing against DOMA?

    Posted on Tuesday, December 11, 2012 at 4:53pm
  5. So what does this actually mean?

    Posted on Tuesday, December 11, 2012 at 4:58pm
  6. hey @TIM KOLANKO see the following link: The DOMA case: US v Windsor . . .Sup Ct. No. 12-307 <> be sure you look at the “question presented link”

    Posted on Tuesday, December 11, 2012 at 5:06pm
  7. hey @tim kolando see the folowing link: The Prop 8 Case: Hollingsworth v Perry . . .Sup Ct. No. 12-144 <>

    Posted on Tuesday, December 11, 2012 at 5:20pm
  8. Melvin … Not sure if this is what Tim is asking but if they DO decide that there is no standing where does this leave the case? I can’t see it as a split circuit decision, not in regards to a federal law. I understand the addition to the question just not the possible implications. (Excuse my legal ignorance)

    Posted on Tuesday, December 11, 2012 at 5:35pm
  9. Yeah, I consider it a good sign. She will be arguing that they have no right to address the question since it was handled by a lower court. The prior ruling would stand in that case, and THEY wouldn’t have to rule on it. I think they don’t want to vote for same-sex marriage, but they know they would have to. Unfortunately, I don’t think the “executive branch’s agreement” with the lower court keeps the Supreme Court from making the final decision. Separation of powers. It’s in the Constitution.

    Posted on Tuesday, December 11, 2012 at 5:36pm
  10. To repeat an above question but a little more specific: What does this mean? In English…that we non-attorney’s can understand?

    Posted on Tuesday, December 11, 2012 at 5:39pm
  11. To Stormy, the best way to explain is that the court has options. One is to completely overturn DOMA (unlikely). Another is to completely rule in favor of DOMA (I think also unlikely). Another is to send it back to lower courts for clarification. Another is to suggest that the Supreme Court doesn’t have jurisdiction, letting the lower court’s decision stand. And most likely they may rule that each state has the right to define marriage, but that federal government can not distinguish between marriages (straight or gay) approved by the individual states. However, they may not even do that because in the DOMA case, at the time of the death of the partner the marriage from Canada was not recognized by the State of NY (although it would be now) where the beneficiary resided. There is also considerations about who could bring a case before the court, this is called “standing”. Standing is basically whether the people involved are actually affected by the outcome.

    Posted on Tuesday, December 11, 2012 at 6:25pm
  12. I’m hoping that DOMA fallls into a deep chasm and that it sends ripples across the country to allow same sex couples to marry

    Posted on Tuesday, December 11, 2012 at 6:28pm
  13. Larry – thanks for the clarification. Tho actually based on court rulings in Feb 2008 their marriage WAS recogonized in New York State at the time of her death in 2009.

    Posted on Tuesday, December 11, 2012 at 6:42pm
  14. The repeal of DOMA means a lot to me and that is why I’m asking.

    Posted on Tuesday, December 11, 2012 at 7:23pm
  15. Considering it’s a law on the books, the fed courts are the only faction appointed to rule on it. If they can’t then the law should be stricken

    Posted on Tuesday, December 11, 2012 at 8:46pm
  16. DOMA doesn’t stop couples from marrying, it prohibits GLBT married families from getting the federal benefits given to other couples

    Posted on Tuesday, December 11, 2012 at 8:49pm
  17. I understand that but I worked for the Federal Government and was able to take my medical with me. If DOMA is overturned, my partner can get on my insurance. It would be a big thing for the both of us.

    Posted on Wednesday, December 12, 2012 at 1:47pm