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What To Watch For: 'Standing' in the Supreme Court's DOMA Case, Windsor v. United States

BY ARI EZRA WALDMAN

On Tuesday and Wednesday, March 26 and 27, the Supreme Court will hear more than 3 hours of arguments in the challenges to the constitutionality of California's Proposition 8 (Hollingsworth v. Perry) and the Defense of Marriage Act (Windsor v. United States). In a series of short posts, I will preview and summarize the legal issues that will be raised. In this column, standing in the DOMA case. 

CapitolIn an earlier post, we discussed the "standing" issue in the Prop 8 case, Hollingsworth v. Perry. The issues there should be pretty familiar to regular Towleroad readers; we have been discussing them since shortly after Judge Vaughn Walker declared Prop 8 unconstitutional in 2010. The standing question in the DOMA case, Windsor v. United States, has not garnered as much attention, but it rests on similar legal principles.

Standing in Hollingsworth depends on whether ordinary citizens can step into the shoes of the state without showing their own "particularized" or "direct injury."

Standing in Windsor depends on whether one house of Congress can step into the shoes of the Executive Branch without showing their own direct injury.

There are really four related questions here:

First, could Congress ever have standing to defend a law like DOMA?

Second, even if Congress could, can one house of Congress defend DOMA without the other?

Third, even if one house of Congress could, did one committee of that house have the power to intervene?

Fourth, even if one house of Congress could defend DOMA, does the Obama Administration's agreement with the Second Circuit's decision striking down DOMA deprive the Supreme Court of jurisdiction regardless of who is defending the law?

JacksonBecause Edie Windsor, President Obama, and House Republicans all believe that the parties have standing and the Court has jurisdiction, the Court, as it sometimes does, appointed a constitutional scholar -- Professor Vicki Jackson of Harvard Law School (right) -- to flesh out the standing argument.  

Think of Professor Jackon's argument this way: Winners can't appeal, the left hand can't do anything without the right hand, and, regardless, both hands are tied. That is, because the Obama Administration won at the Second Circuit and because only one house of Congress is trying to defend DOMA, the Court has no jurisdiction to hear the case. Plus, DOMA is not the kind of law that Congress ever has the authority to defend.

There are several persuasive legal reasons to think this argument is sound, but just as many persuasive reasons on the other side. And, there is one other factor that will most likely push the Court to go beyond the standing question and address DOMA's merits: If it doesn't, then DOMA is the law of the land in several jurisdictions, but unconstitutional in others, contributing to an absurd regime that would be impossible to administer.

I discuss the arguments AFTER THE JUMP.

Could Congress ever have standing to defend a law like DOMA?

The rule of federal standing -- the party needs to articulate a "particularized" or "direct injury" -- and the principle of separation of powers would seem to suggest that Congress can only jump in to defend a law that directly and adversely affects one of its particular prerogatives. All the House is doing in the DOMA case is citing its general interest in seeing a law it passed get enforced. Yet, in a famous standing case called Lujan v. Defenders of Wildlife, the Supreme Court stated that such generalized interest in seeing the government function "in accordance with the law" does not give rise to an injury sufficient for standing.

Basically, the only reason Congress thinks it has standing is because it wants a law enforced and defended. But, so do I and so do you. Congress has no more showed a "direct injury" than you or I. When the Executive Branch declines to defend a law, nothing is happening to Congress: members' votes aren't being nullified and their specific powers are not being directly affected. On the other hand, if an executive tried to enforce a rule that took away a specific Congressional power -- declare war or hire staff, for example -- Congress could sue. There, Congress would have a particularized interest in quashing that rule. With DOMA, there is not such interest.

Could one house of Congress defend DOMA without the other?

Even if Congress could somehow articulate a direct injury, standing would require Congress -- the House and Senate -- to speak together. Case law about Congressional standing has exclusively referred to "Congress" in cases where both the House and Senate sought to challenge a direct attack on their powers. That precedent would have to be extended to include this case, where only one house is trying to assert its role.

130226_john_boehner_1_605_apCan one committee of one house of Congress defend DOMA? 

To be perfectly accurate, it isn't even the House per se that is defending DOMA. It is the mis-named Bipartisan Legal Advisory Group (BLAG), a five person committee of the House leadership with a Republican majority led by Speaker Boehner, that elbowed its way into the DOMA case. BLAG was authorized only "to provid[e] legal assistance and representation to the House," not to intervene in federal litigation. On the other hand, a previous case where Congress did step in to defend a law the president declined to defend involved both the House and Senate passing resolutions explicitly authorizing Congress as a whole to get involved.

Does the Obama Administration's victory at the Second Circuit deny jurisdiction in any event?

This argument has to do with the unique way that Windsor climbed the ladder of the federal judiciary. First, a federal district court in New York adjudicated the case, which then put Edie Windsor and her attorneys against the Obama Administration. Then, the President changed policies, agreed with the district court's striking down DOMA, decided to stop defending the law, and issued notice of appeal. 

But, winners can't appeal.

The Constitution's "case and controversy" rule means that a federal court can only hear a case if there is a real debate, a real disagreement, a real controversy between two legitimate parties. However, when the Obama Administration switched sides, it eliminated any conflict. It switched sides, leaving one side empty, thus denying Windsor a real "case or controversy."

Conclusions and Analysis

That seems like a pretty tight argument. Professor Jackson and her colleagues at Akin Gump who wrote the brief certainly delivered the best possible case for House Republicans lacking standing in Windsor. But, the problems with this argument are as follows:

First, it assumes that the President changing his mind is the same as erasing its "direct injury." The President believes that DOMA is unconstitutional, but it cannot be denied that the federal government has been adversely affected by the decisions in Windsor, much like California has been "injured" by the decisions in Hollingsworth. Before Windsor, the federal government did not have to give legally married gay couples the benefits associated with marriage; after striking down DOMA, the district and appellate courts are saying that it must do so. Before Hollingsworth, California did not have to issue marriage licenses to gay couples; now they do. That President Obama and Governor Brown eagerly want to do so does not change the fact that the government experienced a "direct injury."

If the Court sees the standing question this way, the House could piggy back on the Obama Administration's standing.

Second, it looks at the Court's standing precedent and makes a logical jump. Take the example of the designated hitter rule. Baseball's American league added it in 1973, but before that, there were no designated hitters. But, just because there were no designated hitters before 1973 does not necessarily mean that the designated hitter rule violated baseball's charter or bylaws.

Court precedent on Congressional standing may refer to "Congress," but because its previous cases involved both the House and Senate seeking to intervene together, the Court has simply never had the opportunity to address whether the Constitution allows one house to intervene without the other. Nor has it had the opportunity to consider the powers of BLAG, a relatively new creation in the colorful history of House committees. In other words, Professor Jackson's argument tries to prove too much from strong, but non-authoritative precedent.

It seems more likely that the Court will not make either mistake. 

***

If you missed it, read my preview on 'Standing' in the Prop. 8 case HERE.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.

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Comments

  1. Thank you, as always your analysis is great and muchoy appreciated.

    Can the SCOTUS deny standing and still rule on DOMA because of the murkiness of the situation (only striking down DOMA in the 2nd district?)

    It seems some articles (pro gay rights biased) would like the SCOTUS to reject the cases based on standing, I see this as starting back at almost square one . But I suppose this would be better then upholding Prop 8 and DOMA.

    Again, thank you.

    Posted by: Joe | Mar 23, 2013 1:18:58 PM


  2. I believe Ari really does a good job managing expectations. At least, mine. Much as I would like to see sweeping SCOTUS decisions striking down DOMA and Prop 8, I see where the court may not go that far and leave things on a state level. Sweeping reform might send much of the deep south into battleground mode like Roe V Wade, and cause many state legislatures to chip away at gay rights. NOM and AFA are already prepping to do just that. Again, not my liking, just trying to adjust to any victory is a victory, though I'll keep fighting.

    Posted by: Jim Tideman | Mar 23, 2013 1:30:24 PM


  3. Standing is a jurisdictional issue that must be met in order for the court to proceed to the merits of the case.

    Posted by: Bill S. | Mar 23, 2013 1:53:25 PM


  4. I've never been real hopeful about the DOMA or Prop 8 cases at SCOTUS. But Mr. Waldman's analyses have been like manna from heaven, shedding light on the ways in which the Court might deal with these cases. These are much appreciated, Mr. Waldman, and I thank you for your continuing explanations, which really do help those of us without legal training.

    Posted by: Abel | Mar 23, 2013 3:09:01 PM


  5. I certainly don't hope we win either case on the basis of standing.

    This tendency for administrations to decide which laws they can enforce and which they can ignore is very disturbing to me. Have people forgotten how the Bush adminstration would issue signing statements that basically said 'We don't like this law and we won't enforce it'?

    I would be quite disturbed if a Mitt Romney win would have given him the ability to cancel the Affordable Care Act by simply saying they would not defend against instances where a conservative circuit has struck down the law.

    Posted by: Charlie | Mar 23, 2013 3:31:43 PM


  6. What would stop the SCOTUS from granting provisional standing that is not precedential so they could rule on the merits. I'm thinking that they might try that in the Prop H8 case, so why not here?

    Posted by: TomTallis | Mar 23, 2013 3:36:35 PM


  7. @ Charlie

    The Obama administration has not in any way backed down on its enforcement of DOMA - no same-sex married couples are getting federal benefits because their state says they are married.

    Not defending the constitutionality of the law is entirely different from not enforcing its provisions.

    @Ari
    If Edie Windsor sued the government and won, how does agreeing with that decision somehow suddenly make the administration "the winner?" There were two sides in the case, one side won. That, by definition makes the other side the loser. What am I missing?

    And, as far as the administration goes, having to pay out all the overdue money to any married gay couple within the affected circuit is certainly an "injury" but isn't being forced by law to violate the 14th Amendment an injury as well? At the very least, they have to pay for the all the other lawsuits involving DOMA unless it gets struck down nationwide?

    Posted by: Lymis | Mar 23, 2013 4:03:51 PM


  8. Good grief! Reading through all that gave me an headache! My take away though is that the damage to the Federal Government more than having to pay out benefits (which I don't view the fact that the Government should treat it's citizens fairly and equally as a valid injury) - but instead see the injury as the additional administrative nightmare which would be experienced by the federal government if it couldn't have a uniform process and procedure across the nation. In otherwords, this is a situation where it is completely unworkable to wait for each federal district to work through a lawsuit. I would think that would be the reason that Obama has the right to appeal. The House committee however does not have a right to intervene. Will be curious to see if SCOTUS adopts my view. For me that seems obvious.... but again IANAL. ;-)

    Posted by: Gerry | Mar 23, 2013 4:16:08 PM


  9. Thank you, Mr. Waldman; you are an excellent teacher. You make me feel as if I can understand what is going on with these cases.

    Posted by: NullNaught | Mar 23, 2013 4:42:27 PM


  10. OK, who cloned Aunt Bea and then gave her a law degree?

    Posted by: Caliban | Mar 23, 2013 6:02:23 PM


  11. In the DOMA case, it is Edie Windsor versus the United States of America. Whether the Obama Administration agrees with the lower court or not, the United States of America still hasn't paid back the $363,000. The USA is still enforcing the law which prevents them from recognizing her marriage. What the President and Department of Justice prefer is irrelevant. Until a ruling is made on DOMA, there is still a case and a controversy. The brief by Ms. Jackson is way off base. BLAG has no standing, but that won't prevent SCOTUS from deciding on the merits.

    I personally have A LOT riding on the outcome of the DOMA case....like my entire future. For me, it could not possibly be more personal, and the injury I suffer more particularized.

    Posted by: RWG | Mar 23, 2013 6:05:29 PM


  12. Just reading through this legal jargon bullsh$t reminds me why the rest of the world thinks America is a joke ! We have sat back and let these lawyers totally screw up our country with all this legal crap which keeps them rich and keeps us putting our hands in our pockets to find money to BUY our human rights.

    ENOUGH ! It's time to get all of these judges and lawyers out of our lives, out of our bedrooms and out of our bank accounts !

    WE are the fools who have allowed them to control us !

    Posted by: Icebloo | Mar 23, 2013 6:06:09 PM


  13. I need to know, so when I go out on a Saturday night, can I have a good time with a lot of boys or have to pretend I'm only interested in one I'm married to?

    Posted by: Jim | Mar 23, 2013 6:09:52 PM


  14. Can SCOTUS issue an opinion setting heightened scrutiny for sexual orientation even if they don't find standing? I think there's a split in circuits in re scrutiny [11th (Lofton), 2nd (Windsor)] that they could resolve. If so, that would hand the GOP the means of its own destruction - by keeping the issue alive enough for the GOP to lose in every subsequent case and election. This would avoid the issue of Roe-like backlash that the court fears [needlessly]. I have premature schadenfreude just thinking about it.

    Posted by: Marco Luxe | Mar 24, 2013 6:04:24 PM



  15. @tomtallis. Thank you for your question. The court cannot grant provisional standing. Standing is jurisdictional. If no standing, the court doesnt have the right to even hear the case and proceed further.

    Email by Ari, Typos by iPhone.

    Posted by: Ari Ezra Waldman | Mar 25, 2013 2:48:07 PM


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