The Supreme Court does not have the power to rule on the case the Justices have agreed to review on the constitutionality of the federal Defense of Marriage Act of 1996, a Harvard law professor argued in a brief filed Thursday evening.  The professor, Vicki C. Jackson, also argued against letting the Republican members of the House of Representatives’ leadership defend DOMA’s validity, saying they do not speak for Congress, or even for the House.

If the Court accepts this advice, it probably would miss its chance to rule during the current Term on DOMA’s Section 3, which defines marriage for all federal purposes as the union of one man and one woman. It has been challenged by same-sex couples who are legally married, as they seek the federal benefits at issue.  There is not time, in the remaining months of the Term (unless the Court would really rush things), for review of another DOMA case, even though others are pending.

The Court on December 7 agreed to review the constitutionality of Section 3 in the case of United States v. Windsor (docket 12-307).  At the same time, however, it added questions about its authority to do so and then invited Professor Jackson to argue two points:  One, whether the Obama administration can appeal a case that it won in a lower court (it believes DOMA is unconstitutional, and the lower court ruled that way).   And, two, whether the House’s three GOP leaders could satisfy the Constitution’s Article III requirement that they have a legal right to be DOMA’s defenders in court.

The question about the administration’s stance is one of judicial power: if the Court lacks that basic power to decide, it cannot resolve the constitutional question in response to the government’s appeal.  The question about the House GOP is one of “standing,” in a constitutional sense, to appeal: if those legislators cannot show they had real legal interests at stake, they could not be in court.

In all of the other pending cases on DOMA’s validity, the cases were filed at the Court by individuals who had won the cases in lower courts, with DOMA Section 3 found invalid in each.  And no one other than the House GOP leaders has stepped forward to defend it.   If Professor Jackson’s arguments prevail, it is uncertain how the Court could reach the dispute over DOMA, at least in the cases currently pending on its docket.

It is conceivable, of course, that the Justices added the power-to-rule and the power-to-appeal questions in order to give themselves a way to dispose of the DOMA issue if they are unable to reach a decision on the more fundamental issue of constitutionality.  That kind of strategic consideration, however, was beyond Professor Jackson’s assignment: she was named to make an argument, in essence, against ruling at all.  And that is what she did, in forty pages of legal analysis.

While the Court has also agreed to review the constitutionality of California’s “Proposition 8,” a statewide ban on same-sex marriage, the Court also raised a question of whether it could rule on that case.  It posed the question of whether the sponsors of the “Proposition 8″ ballot measure had “standing” to appeal, under Article III.  (That will be debated between those proponents and the two same-sex couples who successfully challenged that measure in lower courts.  That was not within the assignment the Court gave to Professor Jackson, which was limited to the DOMA case.)

If it turns out that the California proponents are found to lack the right to pursue their appeal, that case, too, could be ended without a ruling by the Justices on the validity of that state’s marriage ban.

Professor Jackson’s argument against Court power to decide the administration’s appeal focused primarily upon the fact that President Obama and Attorney General Eric Holder had changed positions as the case of New Yorker Edith Windsor challenging DOMA went through lower courts.  Initially, the government defended the Section 3 limitation on marital benefits to opposite-sex couples only.  But then it switched, concluding that the ban was unconstitutional.

After a federal judge in New York had ruled in Windsor’s favor, awarding her the estate tax refund she had been denied, under DOMA, following the death of her same-sex spouse, the administration switched.  At that point, according to the Harvard professor, “the United States had no Article III injury to present” in court.

The federal government, the brief said, “cannot ask Article III courts to resolve disputes unless they meet the case-or-controversy criteria.”   Since it accepts that Windsor should have won because of its view that DOMA is invalid, the brief added, the government “offers no concrete injury to its legal interests…sufficient to invoke the jurisdiction of this Court.”

But, the professor went on, even if the administration did have a right to be in court, the Court still should not find — as a matter of “prudence” — that it had jurisdiction to go ahead and rule on the government appeal.   There are only two prior precedents of the Court in which it ruled after the government had refused to defend a law and then appealed, but in both of those cases individuals who had suffered legal harm had brought the constitutional challenges, the brief noted.

The only interest that the administration now has at stake in its appeal, the brief said, is a desire to obtain “a precedent from a higher court.” That is not enough to satisfy Article III, the professor concluded.  Quoting a lower court ruling in 1987, the brief said: ” ‘ No matter how desirable it may be to have a constitutional question settled, the resolution must await the concrete controversy, for only then does the judge have an adequate justification for giving an opinion.’”

While the federal government, under the lower court decision, is faced with a legal duty to refund the estate tax to Windsor, the government agrees that it has a duty to pay, the brief noted.   Just because it wanted to appeal, that “cannot foist jurisdiction on Article III courts,” according to the professor.

Turning to the issue of exercising “prudence,” the brief said that the administration may have proclaimed that it would continue to enforce DOMA even while refusing to defend it in court, in reality it actually no longer has an interest in enforcing the law.  It is only seeking to vindicate the interests of others, such as the interest of Congress in passing DOMA, but that is not a proper basis for the Court to exercise jurisdiction, Jackson said.

The constitutionality of DOMA, the brief suggested, would be properly before the Court if a challenger to the law had lost in lower courts and then filed an appeal to the Justices.  If all the federal appeals courts agreed that the law is unconstitutional, the brief said, then the need for the Court to decide the issue “would be greatly diminished.”

Although the professor mused that the federal appeals court in Windsor’s case may have had the authority to rule, even though the administration at that level was in agreement with Windsor’s claim, she said that would not justify the Supreme Court taking on the case in order to get a definitive, ultimate ruling on a constitutional issue.   The Court’s power to review lower court decisions is now discretionary, and that power should be exercised with prudence, the brief said.

In challenging the three House GOP leaders’ legal right to appeal to defend DOMA, the professor said that the key issue is whether they are seeking to defend a “distinct legislative prerogative,” because only something that fundamental to legislative authority will justify allowing lawmakers to come to court.

“When the Executive Branch declines to defend a law it has enforced, members of Congress suffer no distinct, judicially cognizable injury,” Jackson argued. “Their votes are not nullified and the statute stands as enacted.”

What the three GOP leaders (acting in the case as the majority portion of a five-member Bipartisan Legal Advisory Group) are seeking in the Windsor case, the brief said, is “only to vindicate a ‘widely dispersed’ interest — shared by citizens and legislators alike — in the constitutionality of a federal law.”

The Court in the past has been cautious in allowing legislators to come to court to vindicate policies that they have written into laws, and should continue to be cautious, the brief argued.  Even if the House GOP leaders have some authorization from the House to go to court, that does not push away the barriers to legislators’ lawsuits that have been erected under Article III, Jackson wrote.

Quoting John G. Roberts, Jr., from a law review article he wrote in 1993 (years before he became Chief Justice), the brief said that the Constitution gives Congress many ways to express its disagreement with decisions by the executive branch not to defend a federal law, including holding “oversight hearings” or withholding approval of executive nominees or withholding spending authority.

It is up to the executive, constitutionally, to look after the execution of enacted laws, but decisions not to defend such a law based on a belief that it is invalid “can function to promote a working constitutional system,” the brief argued.  To allow legislators into court to take up the defense of a law, it added, would be to transfer executive power to a different branch of government.

But the brief argued that, even if it were possible to find a way to let legislators defend their handiwork in court, the interest in the constitutionality of the laws Congress passes “would belong to the entire Congress, not just one house.  Accordingly, both houses would have to assert that injury by moving to intervene” in court.

When one of the two houses does not join in such an effort (the Senate is not involved in the DOMA cases), “Congress has not spoken,” the brief said.  To open the courts to a single house’s complaint, it added, “would make congressional interventions far more likely anytime the Executive declines to defend (or one House disagrees with how a law is being implemented), thereby increasing the risks of federal courts being called on to mediate what might be partisan disagreements between elected public officials.”

But, in the current legal dispute, the brief said, it is not even one house that seeks to make its case in the courts.  The Bipartisan Legal Advisory Group “is not the House of Representatives”; it is only an advisory group set up under the House’s internal rules, according to the brief.

Both the Obama Administration and the House GOP leaders will have the opportunity to file briefs next month to counter Professor Jackson’s challenges.

Originally published 9:16 p.m. January 24.

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

Recommended Citation: Lyle Denniston, Amicus plea: Don’t rule on DOMA now, SCOTUSblog (Jan. 25, 2013, 8:06 AM), http://www.scotusblog.com/2013/01/amicus-plea-dont-rule-on-doma-now/