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Supreme Court-appointed attorney files brief on standing in Windsor

Victoria C. Jackson, the outside attorney appointed by the Supreme Court to address the questions of standing in the Windsor v. USA DOMA case, files a brief arguing that BLAG does not have standing to defend DOMA in court and that the Supreme Court itself has no jurisdiction to hear the case because the Justice Department agrees with the lower courts’ rulings striking down DOMA as unconstitutional.

The complications in the DOMA case addressed by Jackson arise out of the complex jurisdictional history of the case.  Edie Windsor’s original complaint was filed against the federal government, which defended DOMA until February 2011, when President Obama and Attorney General Eric Holder announced their opinion that gays and lesbians should be provided heightened scrutiny by the courts and thus that DOMA was unconstitutional.

When the Justice Department declined to defend DOMA in court, BLAG (the Bipartisan Legal Advisory Group of the House of Representatives) stepped in to defend the law in its place.  After the district court struck DOMA down, both BLAG and the Justice Department sought to appeal the decision (as did Windsor herself), beginning a complex back-and-forth about which government group was the proper one to pursue an appeal of the decision.

In her brief, Jackson writes that BLAG lacks standing for three reasons:

“First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.”

Furthermore, Jackson argues that because both Windsor (the original plaintiff) and the Justice Department (representing the United States as the original defendant) want the same result from the case–that is, the invalidation of DOMA–the Supreme Court lacks jurisdiction to hear the case.  In her brief, she lays out three explanations to back up this assertion:

“This Court thus lacks jurisdiction. First, because the United States agrees with both Windsor and the court below, its appeal fails to present a “case or controversy” within the meaning of Article III. Second, even if the Executive Branch’s enforcement of the statute met core Article III requirements for standing and adverseness, prudential considerations support a finding of nonjusticiability, at least with respect to this Court’s jurisdiction. Finally, ordinary rules of appellate jurisdiction preclude appeals by prevailing parties, like the United States, which obtained below the very result it sought. And no prior case compels a different conclusion.”

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