DOMA plea: Delay ruling, but not for long (UPDATED)
on Mar 20, 2013 at 3:58 pm
UPDATE 5:57 pm. This post has been updated with the addition of a second reply brief by the House GOP leaders (BLAG), on jurisdictional issues, and a reply brief by Mrs. Edith Windsor on jurisdiction — both in the DOMA case on same-sex marriage. The briefing in both of the marriage cases is now complete. The oral arguments are next Tuesday (Proposition 8, 12-144) and Wednesday (DOMA, 12-307).
Renewing the argument that the Supreme Court should pass up the opportunity to rule now on the constitutionality of the federal Defense of Marriage Act, a Court-appointed legal adviser on Wednesday suggested that it would not be long before the issue would come up again in a proper case. Harvard law professor Vicki C. Jackson, in a reply brief, argued anew that neither the federal government nor the Republican leaders of the House of Representatives have brought a proper case to the Court.
When the Court on December 7 said it would review the government appeal in United States v. Windsor (12-307), it raised the issue of whether it had the power to actually decide the case. It told lawyers to address the somewhat unusual situation that the government is appealing a lower decision that it won, and the standard issue of whether the House GOP leaders (as the majority members of the Bipartisan Legal Advisory Group) had a right to be in the case to defend DOMA. It named Jackson as an amicus to argue against both.
The professor had already done that in her opening brief on January 24 (discussed in this post); her new brief sought to redouble her suggestion that the case should not proceed further, because it lacks the constitutional minimum character, under Article III, of a genuine “case or controversy.” But the professor’s new filing, while saying that “delay may have real consequences,” sought to assure the government that the delay would not be a prolonged one.
In fact, the brief amounts to a lawyer’s suggestion of what those jousting over DOMA’s constitutionality might do next, in order to revive the controversy before the Court.
Professor Jackson wrote that “the parties’ desire to secure a ruling from this Court is understandable,” but she said that Article III does not pose a very serious obstacle to getting the issue to the Court again. She said that “Article III does not preclude resolution of this important constitutional question in other cases.”
First, she noted, the same constitutional issue could arise in cases between two private parties, when one of them is an employer who is denying marital benefits because of DOMA’s refusal to allow those for legally married same-sex couples.
Second, she suggested that, if a lower court were to uphold DOMA’s benefits ban in another case involving the federal government, the government could seek to take that case to the Supreme Court. It noted that a federal district judge in California, in an immigration case (Lui v. Holder), upheld a provision of DOMA in that case on September 11. (The federal government and House GOP leaders tried to appeal that case to the Ninth Circuit Court, but both appeals were dismissed in February; the records on appeal, though, are under seal, so the present status of that case is unclear.)
Third, Jackson noted that the Obama administration has said that it will continue defending DOMA until it is either repealed by Congress or definitely struck down by the courts. If other courts rule against DOMA, she went on, the government “might conclude that the judicial branch has spoken with sufficient definitiveness and halt its enforcement.” That, presumably, would clear the way for it to take the issue to the Supreme Court again.
Finally, she suggested that Congress might repeal DOMA, and noted that such a proposal has moved out of a Senate committee.
Jackson’s arguments against jurisdiction to hear the administration’s appeal, and against “standing” for the House GOP leaders, generally follow points she had made earlier, but with some responses to arguments that have been made to the contrary.
Meanwhile, the Obama administration filed its own reply brief, defending the Court’s jurisdiction to hear the government case, and arguing that the House GOP leaders lack standing.
The House GOP leaders (BLAG’s majority members) filed a reply brief on the merits of DOMA’s constitutionality. That brief, citing a just-released public opinion poll showing that fifty-eight percent of those responding are in favor of legalizing same-sex marriage, said that attitudes on the issue are changing very rapidly and argued that there is now a “robust debate” over it in the democratic process. The Court, it asserted, has no reason to intervene now to “warp the robust debate.”
UPDATE: The House GOP leaders (BLAG majority) have also filed a reply brief defending its right to be in the Court to support the constitutionality of DOMA. The new brief makes an even stronger attempt than previous filings to turn the dispute over jurisdiction into a contest between Congress (at least, the House) and the Executive Branch over the defense of laws that Congress passes, treating the Executive Branch as if it does not speak for “the United States” on DOMA’s validity. That part of the BLAG argument drew a sharp rebuttal in a new reply brief, on jurisdictional issues, filed by Mrs. Edith Windsor, the New York City woman who filed the challenge to DOMA that is before the Court.