John Boehner Wants to Know 'Who's Going to Jail' for IRS Scandal: VIDEO

As the Justice Department opens a criminal investigation into the IRS scandal, House Speaker John Boehner demands to know "who's going to jail."

Watch, AFTER THE JUMP...

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. 

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.

John Boehner 'Cannot Imagine Supporting Marriage Equality Even if His Son Was Gay: VIDEO

In an interview airing on tomorrow's edition of ABC's This Week, John Boehner, the allegedly fiscally conservative House Republican speaker who's willing to spend $3 million to fight marriage equality, tells reporter Martha Raddatz that he respects fellow Ohio Republican Sen. Rob Portman's decision to support his gay son, but says that he himself cannot imagine ever changing his mind on marriage equality, even if one of his own children were gay.

Watch the exchange AFTER THE JUMP.

'Protect Marriage' and House Republicans: Justifying Discrimination at the Supreme Court

BY ARI EZRA WALDMAN

It's time to take a look at the briefs that ask the justices of the Supreme Court to uphold Proposition 8 and the Defense of Marriage Act. Those briefs, submitted by the official Prop 8 proponents, ProtectMarriage, and Speaker Boehner (right) and his House Republican majority, respectively, rely on tired stereotypes about children needing different-gendered parents in order to thrive, and purport to rest discrimination on the difference in the means by which heterosexuals and gays procreate. It really is that simple: Junk (and long debunked) science, coupled with inordinate reliance on the male-female procreative phenomenon, apparently justify keeping gay persons away from the institution of marriage.

Remarkably, this represents progress. Gone are the sophomoric and ludicrous claims that gays marrying will somehow damage existing opposite-sex marriages or discourage committed heterosexuals from walking down the aisle. Also gone are explicit references to flimsy and biased "studies" that showed that gays make bad parents. What remains is the fact that heterosexuals procreate through unprotected vaginal intercourse and because gay couples do not, their marriages do not implicate the same governmental interests in fostering thriving and successful children.

So while the most irrational anti-gay arguments have long since been trashed, the remainder fail the test of logic: Even if it were true that gay couples' means of procreation set them outside the target of the government's interest in encouraging heterosexual marriage, that says nothing about why gays would have to be excluded from marriage in order to further that interest. Think of it this way: if it is true that the sky is blue, that really tells us nothing about whether the ground is brown. If the government has an interest in encouraging heterosexuals to marry, that cannot explain why that interest means that it has to ban gays from marrying.

I discuss the arguments in the briefs in more detail AFTER THE JUMP...

Towleroad Guide to the Tube #1315

JOHN BOEHNER: Getting testy about the sequester.

BUTTER CANDLES: Not the prettiest things, but who knew?

SCIENCECAST: NASA looks at the origin and make-up of the Russian meteor.

MARRIAGE NEWS WATCH: AFER's Matt Baume on the briefs in the Prop 8 and DOMA cases.

For recent Guides to the Tube, click HERE.

Rachel Maddow Blasts Boehner, House Republicans for Blocking Gay Military Benefits: VIDEO

Rachel Maddow looks at Defense Secretary Leon Panetta's recent announcement that benefits to nearly the extent allowed by current law will be extended to gay servicemembers and their families, and John Boehner and House Republicans' campaign to defend DOMA, effectively blocking full benefits.

Maddow also looks at the infuriating and heartbreaking story of Charlie Morgan, the lesbian soldier and activist who recently lost her battle with cancer, and Morgan's wife Karen, who will not be receiving any benefits because DOMA is still in place.

Says Maddow: "It is a sad story. For many people it is an enraging story. But it is not a finished story."

Watch, AFTER THE JUMP...