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Final Supreme Court briefs filed in Windsor DOMA case

All parties in the Windsor challenge to Section 3 of DOMA file their final briefs with the Supreme Court.  One brief, by the Bipartisan Legal Advisory Group defending DOMA’s constitutionality, addresses the merits of the case.  The other briefs, filed by BLAG, the Justice Department, Edie Windsor and a court-appointed outside attorney, address the issues of BLAG’s standing to appeal and whether or not the Supreme Court has jurisdiction to hear the case.

In its brief on the merits, BLAG argues vehemently that the Supreme Court should consider Section 3 of DOMA under the most deferential form of judicial review, the rational basis test.  BLAG disputes Edie Windsor’s contention that laws pertaining to gays and lesbians should be considered under the more searching form of review known as heightened scrutiny, arguing that gays and lesbians are not ‘politically powerless,’ a characteristic courts often look at when determining whether to apply heightened scrutiny:

 “[G]ays and lesbians have made more progress through the ordinary political processes more quickly than any other group in recent memory, both on the issue of marriage and more generally. The impressive array of amici supporting affirmance provides powerful testimony to the political clout of a group that has been remarkably and increasingly successful in accomplishing its goals through the political process.”

BLAG also argues that sexual orientation is not ‘immutable,’ writing instead that “sexual orientation is defined by a tendency to engage in a particular kind of conduct” and that it is “not discernible at birth.”

In the conclusion of its brief, BLAG urges the Court to “allow a robust political debate in which proponents of same-sex marriage have made remarkable strides to continue,” essentially asking the Court not to rule and to instead allow the marriage equality debate to continue legislatively.

Vicki Jackson, the court-appointed outside attorney tasked with arguing specifically about the questions of standing and jurisdiction in the case, writes in her brief that the Supreme Court does not have jurisdiction to hear the Windsor case because both the plaintiff (Edie Windsor) and the defendant (the federal government) agree that DOMA is unconstitutional and approve of the lower courts’ decisions to that effect.  She also writes that BLAG does not have standing to appeal because it has not “suffered a legally cognizable injury.”

In their jurisdictional briefs, both Edie Windsor and the Department of Justice argue that the Supreme Court does have jurisdiction to consider the appeal of her case because the federal government continues to refuse to afford Windsor the constitutional remedy called for by the courts, but write that BLAG does not have standing to appeal.

Unsurprisingly, in its own standing/jurisdictional filing, BLAG argues that it does have standing to pursue the appeal, writing that “each house of Congress is a proper party in an action where the executive has refused to defend the constitutionality of a statute.”

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