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Amicus brief: U.S. Supreme Court does not have authority to rule on DOMA

Harvard professor argues Obama's agreement with lower court rulings on DOMA trumps Justices' power
Thursday, January 24, 2013

The U.S. Supreme Court does not have the authority to rule on the constitutionality of the federal Defense of Marriage Act (DOMA), argued a Harvard professor in a brief filed Thursday with the high court.

In an amicus brief, Professor, Vicki C. Jackson contends that the Obama Administration’s agreement with a lower court rulings that DOMA is unconstitutional, strips the Justices’ authority to rule on DOMA, and that the House of Representatives’ GOP leadership does not have a right to appear in the case under Article III of the Constitution.

Vicki C. Jackson

Jackson asserts that the GOP-led Bipartisan Legal Advisory Group (BLAG), is — by its own definition — an “advisory body” in the House, and does not have the authority to speak for the entire House, or Congress as a whole, reported SCOTUS Blog.

“It is the Executive Branch, not Congress, that is obligated to ‘take Care’ that laws are enforced. Moreover, any injury that might arise from non-defense of a law would be to the whole Congress, which one House cannot alone assert,” Jackson wrote in her brief.

Jackson was appointed by the Court in December to make those arguments in the case of United States v. Windsor, the appellate to Windsor v. United States — a challenge to DOMA brought by Edith Windsor over the federal government’s refusal to recognize her marriage to Thea Spyer when it comes to estate taxes on her deceased spouse’s estate.

Jackson also argues that GOP leaders’ “interest in obtaining a ruling from a higher court does not create standing.”

The court has also instructed House leaders to defend their legal right to be in federal court to defend DOMA, and a brief on that point is due from BLAG on February 22.

On Tuesday, Republican members of the U.S. House leadership filed a brief asking the Court to uphold DOMA, arguing that gays and lesbians are a powerful interest group, and do not warrant “judicial intervention.”

In that brief, Paul Clement — a former United States solicitor general and current partner at the Washington law firm Bancroft PLLC — now representing the Bipartisan Legal Advisory Group, argued that the federal government has the same power as state governments do to define marriage.

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30 more reader comments:

  1. Does Congressional Republicans even have standing to bring this case to the High Court?

    Posted on Thursday, January 24, 2013 at 8:49pm
  2. They have the power to rule on federal benefits for gay couples but not the individual marriage laws of states.

    Posted on Thursday, January 24, 2013 at 8:51pm
  3. yes it does you bitch! either give us our constitutional rights or give us back all our taxes since 7/4/1776 with compounded interest. No taxation without EQUAL representation and rights under the law. We fought one revolution over that very principle do you want us to fight another one and win? your choice you bigot elitist.

    Posted on Thursday, January 24, 2013 at 8:52pm
  4. I wonder if her head is screwed on too tight?

    Posted on Thursday, January 24, 2013 at 8:52pm
  5. Why the fuck are you teaching at Harvard?

    Posted on Thursday, January 24, 2013 at 8:53pm
  6. You miss the point. What she’s arguing is that lower courts have already ruled DOMA unconstitutional, and Obama (the Executive Branch) has accepted those rulings, so SCOTUS does not have jurisdiction to rule again (possibly against).

    Posted on Thursday, January 24, 2013 at 8:55pm
  7. So, what does that mean?

    Posted on Thursday, January 24, 2013 at 8:56pm
  8. If my government classes serve me right, the Court was created to determine the constitutionality of ALL laws.

    Posted on Thursday, January 24, 2013 at 8:57pm
  9. She’s also saying Boehner and Cantor dont have standing as they don’t have authority to speak for the entire Congress (Senate included). She’s totally on point!!!

    Posted on Thursday, January 24, 2013 at 8:57pm
  10. John, a federal court has already ruled, and the Executive branch has accepted that ruling. There’s no need for SCOTUS to rule.

    Posted on Thursday, January 24, 2013 at 9:01pm
  11. She is fucking crazy. I’m moving to Canada !

    Posted on Thursday, January 24, 2013 at 9:01pm
  12. Who cares, in June the US Supreme Court will legalize same-sex marriage nationwide.

    Posted on Thursday, January 24, 2013 at 9:03pm
  13. Hmmmm……what does this mean?

    Posted on Thursday, January 24, 2013 at 9:04pm
  14. It means Boehner threw away $3 million to defend DOMA and likely doesn’t have the authority to do so.

    Posted on Thursday, January 24, 2013 at 9:06pm
  15. @Ben Ditmars. You’re wrong. They absolutely can rule on state laws. Just like they did on interracial marriage laws and sodomy laws.

    Posted on Thursday, January 24, 2013 at 9:15pm
  16. OMG! I can’t wait to hear the implication of this. This can be pivotal in the DOMA case.

    Posted on Thursday, January 24, 2013 at 9:17pm
  17. NEWS FLASH: The Supreme Court APPOINTED her to argue those points. They specifically hired her to make the strongest case possible for why BLAG lacks standing and for why the Court itself lacks jurisdiction on the matter – that doesn’t mean she actually believes those things, she is just responding to the Court’s request.

    Posted on Thursday, January 24, 2013 at 9:58pm
  18. For what it’s worth, I think it very UNLIKELY that the Court will agree with her and dismiss these cases on procedural grounds…after all, every lower Court that has heard these cases rejected the contention that BLAG lacks standing and that the judiciary is without power to resolve the matter.

    Posted on Thursday, January 24, 2013 at 10:02pm
  19. NEWS FLASH II: SCOTUS does not rule on the constitutionality of EVERY law that exists, nor is it obligated to. That’s why we have lower courts. SCOTUS picks and choose the cases it will hear after appeals are exhausted in the lower courts, and when those appealing have standing. This professor is saying that BLAG does not have standing to argue DOMA on behalf of the entire US Congress (which would include the Democratic-led Senate).

    Posted on Thursday, January 24, 2013 at 10:04pm
  20. Hello, that is what the court asked her to argue!!! They wanted to hear what the argument on the other side was, and they specifically hired her to make those claims. She didn’t wake up one morning and say, “Oh, lets throw a wrench in these cases so they cant be definitively resolved.” The Court hired her to argue as she did. Also, nothing you said contradicts my central point: which is that numerous federal courts have already heard arguments that BLAG lacks standing and that the judiciary is without power to resolve the matter…no lower Court agreed with these claims, hence, it is unlikely the Supreme Court will agree to them. They are probably eager to get to the merits of the case.

    Posted on Thursday, January 24, 2013 at 10:13pm
  21. Also, I dont know who you are, but you are completely wrong on some of your previous comments. It is IMPERATIVE that the Court rule definitively on these cases. The Executive Branch has accepted the ruling of the lower courts AT PRESENT, but if a Republican wins the presidency in the future, he/she may be of a different opinion and may resume litigation on the matter, or may even instruct executive agencies to enforce the law anew pending a final judgment from the Supreme Court.

    Posted on Thursday, January 24, 2013 at 10:17pm
  22. I dont know who you are either, and i’m not trying to contradict your points at all. I am aware SCOTUS appointed Jackson to make these arguments. Personally agree with the brief (that I have read in its entirety) that BLAG doesn’t have standing. Nowhere did I say it wasn’t IMPERATIVE that SCOTUS rule on DOMA, I was only responding to the earlier commenters who argued against the brief and said SCOUTUS is required to rule in the matter.

    Posted on Thursday, January 24, 2013 at 10:26pm
  23. The US Congress passed DOMA way back when, and if a majority of one House feels the need to defend it I can’t see why they wouldn’t have standing to do so. BLAG may not represent the whole entity it claims to represent, but it does clearly represent a relevant party.

    That being said, even from my Conservative perspective, I agree that DOMA is unconstitutional because it allows states to deny their “full faith and credit” to same-sex marriage licenses granted by other states.

    DOMA is the current law of the United States, and a highly consequential law at that, and it deserves a fair trial in the highest court. I hope it will lose that trial, but the Supreme Court should rule nonetheless.

    Posted on Thursday, January 24, 2013 at 10:27pm
  24. LGBTQ Nation left out a fact Vicki Jackson was ASKED by the Supreme Court justices FOR HER OPINION http://www.lgbtqnation.com/2012/12/u-s-supreme-court-asks-harvard-law-professor-to-argue-doma-question/

    Posted on Thursday, January 24, 2013 at 10:40pm
  25. Paragraph 5: “Jackson was appointed by the Court in December to make those arguments in the case of United States v. Windsor….” There’s also a related story link at the end of the article.

    Posted on Thursday, January 24, 2013 at 10:44pm
  26. that information should have been in the lead because the article is misleading without the initial reason why Ms Jackson filed the amicus brief

    Posted on Thursday, January 24, 2013 at 11:14pm
  27. you’re probably right, but you should still read the entire article before you comment or criticize it, and say something was left out. just makes you look ignorant.

    Posted on Thursday, January 24, 2013 at 11:18pm
  28. you are only allowed to be tried or convicted in a court of law one time for the same crime. DOMA has sen it’s day in court or else people could be dragged into court for infinity for the same crimes, as was done in America’s past until you get the ruling you want from a friendly judge.

    Posted on Friday, January 25, 2013 at 2:55am
  29. American citizen rights for the gay community-including but not limited to marriage equality-is too big an issue for the States to handle, as evidenced by the disparity of ordinances state to state, not to mention local ordinances within each state. Leaving gay American citizen rights to each State is akin to leaving racial,gender,religious civil rights to each State. Unacceptable.This is a civil rights issue, and must be resolved by the Feds. Period.

    Posted on Friday, January 25, 2013 at 4:39am
  30. There NEEDS to be a FEDERAL LAW FOR Marriage Equality! Pass it already!

    Posted on Friday, January 25, 2013 at 6:56am