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.
In 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?
Because 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.