When the Supreme Court granted the Solicitor General’s petition for certiorari on December 7, 2012, in United States v. Edith Windsor, posing the question whether Section 3 of the Defense of Marriage Act violates the equal protection rights of married same-sex couples by denying them federal recognition, the Court added two questions: Whether the government’s “agreement with the court below that DOMA is unconstitutional deprives [the Supreme Court] of jurisdiction to decide this case, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which intervened at the trial court to argue in favor of the constitutionality of Section 3, has “Article III standing” to participate as a party in the case.
Presuming that neither Edie Windsor, the government nor BLAG would argue to the Court that it lacks jurisdiction over their case, the Court appointed Professor Vicki Jackson of Harvard Law School as a “friend of the Court” with directions to brief and argue that the Court lacks jurisdiction. Jackson filed her brief, written with attorneys from the law firm of Akin Gump Strauss Hauer & Feld LLP, on January 24, making the argument requested by the Court. Her brief has been posted by the clerk of the Court on the page devoted to the same-sex marriage cases on the Court’s website, which can be reached by clicking on the “Docket” box on the left-hand side of the Court’s homepage.
The jurisdictional questions are complicated, and probably lie outside of the consciousness of most people who are not federal litigators or legal academics, but they raise a serious possibility that the Court will not actually decide in this case whether DOMA Section 3 is unconstitutional. This is because the Supreme Court’s jurisdiction is circumscribed by the Constitution and by a body of procedural law developed by the Court over more than two centuries. In Article III, the Constitution says that the “judicial power” of the United States extends to “cases” and “controversies,” primarily involving federal law issues or disputes between parties from different states. The Court has interpreted this reference to “cases” and “controversies” to be a limitation on the jurisdiction of the federal courts, so that they cannot issue “advisory opinions” and can only rule on issues that are disputed between parties who have something personally at stake in the controversy.
In U.S. v. Windsor, Edie Windsor, as executor of her wife’s estate, had to pay out $363,053 in federal estate taxes that would not have been owed had the government recognized her Canadian same-sex marriage. She has a real stake in the outcome of this lawsuit, so her lawsuit presented a real “controversy” to the U.S. District Court for the Southern District of New York, in Manhattan.
BLAG has argued that it is not clear that New York would have recognized the marriage when Thea Spyer died in 2009, because the New York Court of Appeals had not ruled on the marriage recognition question and New York did not pass its Marriage Equality Law until two years later. If the marriage was not recognized by New York, there would be no basis to argue that it must be recognized by the federal government, and Windsor’s case would be dismissed for failure to assert a valid legal claim. The lower courts resolved that question against BLAG, however, pointing to numerous signs that by 2009 such a marriage would be recognized in New York, including rulings by intermediate appellate courts (the first, coincidentally, involving a Canadian same-sex marriage) and pronouncements by state officials, including the attorney general. BLAG has raised this issue again in a footnote to the brief it filed on January 22.
The more pressing problem for the Court’s jurisdiction is that while preparing to respond to Windsor’s lawsuit, the Justice Department reconsidered its position on the constitutionality of Section 3, deciding that it was unconstitutional. With President Obama’s approval, the Department adopted a policy of not defending Section 3 in court, even though the Executive Branch would continue to enforce it until it was either repealed or declared unconstitutional by the Supreme Court. Attorney General Eric Holder informed Congress of this development by a letter to House Speaker John Boehner, who convened the Bipartisan Legal Advisory Group of the House of Representatives to consider whether to take action. (The Senate, controlled by the Democrats, expressed no interest in participating in this.) Boehner’s Group took a party-line vote of 3-2 to authorize the Counsel to the House to hire an attorney to defend Section 3. They hired Paul Clement, who was Solicitor General during George W. Bush’s second term. Clement filed a motion on behalf of BLAG to intervene as a party, which was granted by the trial court. Clement opposed Windsor’s motion for summary judgment, the Justice Department argued in favor of Windsor’s motion, and the district court granted Windsor’s motion, thus giving the Justice Department the result it was seeking, a judicial declaration that Section 3 is unconstitutional.
The Justice Department filed an appeal to the 2nd Circuit Court of Appeals, purportedly to ensure that the appeals court would have jurisdiction over BLAG’s appeal, since there were doubts about BLAG’s standing to appeal on its own, discussed below. In briefs and at oral argument, the Justice Department argued that the 2nd Circuit should affirm the district court’s ruling, which it did. But even before the 2nd Circuit ruled, both Windsor and the Solicitor General had filed petitions asking the Supreme Court to review the case, although the district court had ruled in their favor. They argued that the question whether Section 3 was unconstitutional needed a definitive answer from the highest court, having already been declared unconstitutional in another case by the 1st Circuit Court of Appeals in Boston. After the 2nd Circuit affirmed the district court, the Solicitor General filed an additional statement with the Supreme Court, arguing that this case, rather than the case from the 1st Circuit decided earlier in 2012, would make the best vehicle for ruling on the constitutionality of Section 3. On December 7, the Court granted the Solicitor General’s petition (but not Windsor’s petition), adding the question about jurisdiction.
Prof. Jackson’s brief argues that the Solicitor General’s petition does not present the Court with a real “controversy,” as that term has been defined by the Court’s prior decisions, because the government does not disagree with the rulings by the 2nd Circuit and the district court finding Section 3 unconstitutional. The government’s position is not adverse to Windsor’s position; there is no real dispute between them about the unconstitutionality of Section 3. In effect, the government is asking the Court to affirm the lower court’s ruling.
There is a dispute about the outcome – and a real case or controversy for the Court to decide – if there is an adverse party. That raises the question of Paul Clement representing BLAG. If BLAG has “standing” as a party, it can provide the controversy by arguing that Section 3 is constitutional. But is BLAG a proper party to argue for reversal of the 2nd Circuit’s ruling?
The Supreme Court has ruled in the past that only an individual or entity with “standing” can bring a lawsuit or appeal a court’s decision. A party has standing if they have a personal stake in the outcome of the matter that is distinct from the general interest that any citizen has in the correct interpretation of the law. Windsor has a $363,053 stake in the matter, since she had to fork over the money. The government always has a stake in the question whether a statute is constitutional, so nobody is questioning the standing of the government, as represented in the Supreme Court by the Solicitor General. But BLAG does not represent the government. Professor Jackson points out that when it sought to intervene in the case, BLAG did not even officially represent the House of Representatives, much less Congress as a whole, as there was no congressional resolution authorizing its action. BLAG’s interest in the case is not particularized in the way Windsor’s interest is. None of the five members of BLAG – the Speaker of the House, the majority and minority leaders and the majority and minority whips – has any individual stake in the outcome. Members of Congress may have a generalized interest in whether a statute that they passed is constitutional, but not an individual, particularized interest.
Professor Jackson devotes much attention in her brief to distinguishing a case where lawyers for Congress were allowed to intervene as parties: Chadha. The case involved a provision of the immigration law that allowed a single house of Congress to vote to overrule a decision by the Justice Department concerning whether to deport a non-citizen from the United States. Such a vote had been taken in the case of Mr. Chadha, but a lower court found this provision of the law to be unconstitutional as a breach of separation of powers required by the Constitution. The Supreme Court, agreeing that the provision was unconstitutional, said in its opinion that Congress had standing to intervene, because the challenged statute involved a question of whether Congress could include in a statute a provision giving a single house of Congress power to override an executive branch decision. Congress as a body had a particularized interest in that question. Both houses of Congress passed resolutions authorizing the retention of a lawyer to intervene on their behalf.
This case is different. Neither house of Congress voted to authorize intervention in this case on behalf of Congress. The institutional prerogatives of Congress are not directly at stake in the question whether Section 3 of DOMA violates the equal protection requirements of the 5th Amendment. While members of Congress might make their views known to the Court through an amicus brief, neither Congress as a whole, a single house of Congress, nor a small committee of members such as BLAG, would have “standing” under the Court’s precedents.
If BLAG does not have standing as a party, then there is no party properly before the Court in this case seeking a reversal of the 2nd Circuit’s decision, so there is no true “case” or “controversy” as those terms are defined by the Court in its past decisions, which would mean that “the judicial power” of the United States no longer extends to this case before the Supreme Court, or so Professor Jackson strongly argues in her brief.
What if the Court agrees with Professor Jackson? At least it would have to dismiss the writ of certiorari for lack of jurisdiction. What would that mean for the 2nd Circuit’s ruling? Professor Jackson suggests that the 2nd Circuit might still have had jurisdiction to hear the appeal, based on a variety of arguments, but it is possible that its jurisdiction would also be found lacking, resulting in vacating its ruling. There is no doubt for Professor Jackson that the district court had jurisdiction, because Edie Windsor was suing for a tax refund and the Internal Revenue Service would not pay her unless ordered to do so by a court, so there was a real case or controversy at that level.
But if the Supreme Court agrees with Professor Jackson’s argument, the practical result is that for the remainder of the Obama Administration, assuming that the Justice Department does not revert to defending DOMA, the only way a constitutional challenge can get to the Supreme Court would be for a federal court of appeals to rule that Section 3 is constitutional, thus putting the plaintiff in the role of a petitioner seeking a reversal of the court of appeals, presenting a real controversy for the Supreme Court to resolve. In the meantime, the question of Section 3’s constitutionality would continue to be litigated in various courts, and Prof. Jackson suggests that if all the circuit courts of appeals come to agree that it is unconstitutional, a consensus could be reached without the participation of the Supreme Court and the executive branch could stop enforcing the statute. But that might take many years.
When the Court granted certiorari in this case and added the jurisdictional questions, I joked with a few people that perhaps the only way to get the Supreme Court to rule on DOMA would be to lose the case in the court of appeals. Prof. Jackson reaches the same conclusion, stating as much on page 38 of her brief. The parties in the case will file briefs responding to Prof. Jackson’s arguments late in February, and the Court will hear arguments in this case during the last week of March, with a decision expected by the end of June.