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DOMA: In Windsor v. USA, Justice Department argues against dismissal of its Second Circuit appeal

DOMA trials Windsor

By Scottie Thomaston

House Republicans moved to dismiss the Justice Department’s appeal in Windsor v. USA a couple weeks ago, arguing that it is superfluous since the Bipartisan Legal Advisory Group (BLAG) filed its own appeal as the losing party in the court below. They also argued the Justice Department lacks standing to appeal. This has continued throughout all the Section 3 (of DOMA) litigation, with both sides arguing the opposing side lacks Article 3 standing.

The Justice Department has filed its response. The arguments are essentially the same as the ones covered yesterday in the Golinski reply brief: (1) the Executive Branch has standing to appeal because even though it got what it wanted in the lower court’s decision, it is still tasked with enforcing all laws until the judiciary renders its final say on the constitutionality of the law. Since the decision bars Executive Branch enforcement, they argue they have standing to appeal.

(2) Since they argue BLAG lacks standing as an advisory group to one house of Congress, dismissing the DOJ appeal would likely prevent the court from issuing a final ruling on the constitutionality of Section 3 of DOMA. They argue that there is no reason to reach the issue of BLAG’s standing because the DOJ has independent standing, but if they do, they should agree that BLAG lacks Article 3 standing. If no one can appear in court, the constitutional question will linger.

Here is the filing, via Kathleen:12-2335 #108


  • 1. Bob  |  August 8, 2012 at 12:25 pm

    off topic but very current and great action

    keep this topic alive on facebook,,, it's not so much about getting Romney to do anything as it is about educating the American public about his misleading ads about welfare reform their attempt is education for the voter please help

  • 2. Sagesse  |  August 8, 2012 at 2:26 pm


  • 3. Bruce  |  August 8, 2012 at 6:43 pm

    BLAG has an incredible amount of chutzpah, claiming that someone ELSE lacks "standing" to appeal a court decision– given that their entire PURPOSE for ORGANIZING what to interfere in a process where THEY had no standing! How absurd…

  • 4. Mike in Baltimore  |  August 8, 2012 at 7:08 pm

    So let's see.

    The law suit is Windsor vs. USA (but in effect, against the IRS). Every agency in the US government is mandated by law to turn to DoJ for judicial services. That means Congress has told the Executive Branch that all judicial services MUST go through DoJ. Even independent agencies in the Executive Branch that are not funded by taxes must go through DoJ, and are not allowed to defend themselves without DoJ assistance. The Farm Credit Administration, Farm Credit System Insurance Corporation and the Federal Deposit Insurance Corporation are but three such examples.

    This, in effect, makes DoJ the defendant.

    So is BLAG telling the defendant it can't appeal an adverse decision and defend the IRS (but in reality, itself) in an appeals court?

  • 5. Prop 8 Trial Tracker &raq&hellip  |  December 13, 2012 at 6:29 pm

    […] the Bipartisan Legal Advisory Group (BLAG), defending Section 3 of DOMA for House Republicans, has asked the court to dismiss the DOJ appeal but not its […]

  • 6. Prop 8 Trial Tracker &raq&hellip  |  December 18, 2012 at 1:48 pm

    […] the court to dismiss the Justice Department’s appeal in the case, and the Justice Department opposed that motion. The Second Circuit issued an order that the motion to dismiss will be deferred until after […]

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