The Stanford Law Review Online: Defending DOMA in Court
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:
In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.
He concludes:
Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.
Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.
January 28, 2013 at 10:30 am
Tags: Civil Procedure, Civil Rights, Constitutional Law, same sex marriage, standing, Supreme Court
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Courts, Current Events, Law Rev (Stanford), Supreme Court
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Lewis v. Harris II — “civil union” versus “marriage”, one more time
posted by Marc Poirier
Last month, on behalf of several same-sex couples, Lambda Legal filed a “Petition in Aid of Litigants’ Rights” with the New Jersey Supreme Court, asking for further relief in Lewis v. Harris, 908 A.2d 196 (N.J. 2006). The petition argues that the state’s Civil Union Law, created in 2006, has utterly failed to create the constitutionally required equality for same-sex couples. It requests the court to revisit the matter forthwith and order the state to recognize marriage for same-sex couples.
In 2006 in Lewis v. Harris, the court held 7 – 0 that New Jersey’s constitution as a matter of equal protection (although not as a fundamental right) required the state to provide all the rights and benefits of marriage to committed same-sex couples, and also some kind of full legal recognition — the already-existing “domestic partnership” regime, with its limited benefits and different structure, was constitutionally insufficient. But the court split 4 – 3 on whether to require the legislature to include same-sex couples within the legal definition of marriage, or to permit the legislature in its discretion instead to create a new legal institution for same-sex couples. The legislature (very quickly) chose the latter course, enacting New Jersey’s Civil Union Law.
Three years later, the March 2010 pleading challenges that law as constitutionally inadequate. It argues that the separate institution of civil union does not convey to same-sex couples and their families the important though intangible status of marriage, and that the separate-but-equal approach stigmatizes them in an ongoing way; that same-sex couples and their families must expend considerable effort and suffer considerable embarrassment claiming the equal rights that “civil union” is supposed to provide; and that in daily encounters, failures of others to recognize “civil union”, whether inadvertent or deliberate and feigned, regularly result in not being accorded rights and benefits equivalent to those of different-sex married couples, the goal that civil union is required to achieve.
April 29, 2010 at 2:15 pm
Tags: civil union, Constitutional Law, domestic partnership, equal protection, homosexuality, LGBT, marriage equality, same sex marriage, separate but equal
Posted in: Civil Rights, Constitutional Law, Family Law
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Prop 8 ruling to come down on Tuesday
posted by Kaimipono D. Wenger
From the court’s own website:
The California Supreme Court has announced that it will issue an opinion in three cases challenging the constitutionality of Proposition 8 at 10 a.m. on Tuesday, May 26, 2009.
I’ve previously blogged some analysis of the case. Like most other observers, I expect that the court will reject both the revision/amendment challenge and the fundamental rights challenge, but will not retroactively nullify the 18,000 marriages that took place before November. That would be, in effect, a partial victory for both sides.
I guess we’ll find out one way or another this Tuesday.
May 22, 2009 at 1:46 pm
Tags: california, proposition 8, same sex marriage
Posted in: Civil Rights, Constitutional Law, Current Events, Feminism and Gender
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