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

Tuesday, December 11, 2012
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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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