The Republican leaders of the House of Representatives urged the Supreme Court on Friday to cast aside the Obama administration’s appeal on the constitutionality of the federal Defense of Marriage Act, though that already has been granted review, and to then take on the dispute in the GOP chiefs’ own case in defense of the law.

In a brief answering jurisdictional questions raised by the Court when it took on the DOMA dispute, the House’s Bipartisan Legal Advisory Group (BLAG) argued that it has a right under the Constitution’s Article III to be in court in DOMA cases.  It noted that the administration has stopped defending the law and instead is attacking it.

(BLAG is a five-member panel with three Republicans and two Democrats.  The brief noted that all five support Article III standing for the panel, but the Democrats do not support the GOP members’ defense of DOMA. It is not clear that the Democrats support the plea to put aside the government appeal.)

The new filing also contended that the New York woman who was at the center of the case the Court is reviewing does not have a right to appeal.  Both the administration and Ms. Windsor won in lower courts, getting everything that they wanted out of the controversy, and thus have given up their right to pursue the case in the Supreme Court.

“Without the House’s participation,” the document said, “it is hard to see how there is any case or controversy here at all.  Both Ms. Windsor and the executive agree that DOMA is unconstitutional and that Ms. Windsor was entitled to a refund [for an estate tax she paid].  And the lower courts granted them all the relief they requested.  Only the House’s intervention provides the adverseness that Article III demands.”

The legal advisory panel, treating its membership as the representative of the full House of Representatives, said that the House “has a concrete interest in ensuring that its passage of DOMA is not completely nullified by a binding judicial determination.”   That would impose “a direct injury on the House,” and that could be remedied by a ruling by the Justices upholding DOMA, it added, commenting: “Article III requires no more.”

With the Administration and Ms. Windsor without a right to appeal, in the House GOP view, the brief said that there remains “a party aggrieved” by the Second Circuit’s decision striking down DOMA’s ban on federal benefits for same-sex marriages. “That party is, of course, the House,” the brief said.

If the Court accepts its views on the jurisdictional points, the brief said, “the proper course is clear”: the Court should dismiss the government’s petition (docket 12-307) and grant the House’s own separate petition (docket 12-785) “as the vehicle to resolve the question of DOMA’s constitutionality.”

Posted in U.S. v. Windsor, Featured, Merits Cases, Same-Sex Marriage

Recommended Citation: Lyle Denniston, DOMA: House GOP seeks lead role, SCOTUSblog (Feb. 22, 2013, 4:36 PM), http://www.scotusblog.com/2013/02/doma-house-gop-seeks-lead-role/