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Does BLAG Have Standing in the Defense of Marriage Act (DOMA) Case in Front of the Supreme Court?

In about six weeks, the Supreme Court will hear oral argument in two potentially blockbuster same-sex marriage cases.  In one case, Hollingsworth v. Perry, the plaintiffs challenge California’s voter-adopted ban on same-sex marriage (Proposition 8), and in the other, United States v. Windsor, the plaintiffs contest the federal Defense of Marriage Act (DOMA), which prevents any agency of the United States from recognizing same-sex marriage for purposes of federal law, even in instances (such as that presented by Windsor) where the state in which the same-sex couple resides itself recognizes the same-sex marriage.

On the merits, both cases involve complex issues of liberty, equality, and (perhaps) federalism.  Yet both cases also present tricky procedural obstacles that might dissuade (or prevent) the Court from reaching the merits.  In the Proposition 8 case, the key procedural question is whether the sponsors of the Proposition 8 initiative have standing under Article III of the U.S. Constitution to defend the measure against constitutional challenge in federal court where, as here, the state elected officials who would normally be expected to defend state laws (the California Attorney General and Governor) have, in this instance, declined to do so.  I have written extensively before (most recently here) about why, even if in some circumstances initiative sponsors should be conferred standing in federal court, I feel that there are good arguments that the Proposition 8 sponsors were never deputized by the voters of California, and thus should not enjoy federal standing in the present case.  In the space below, I analyze the standing issue presented in the DOMA case.

The Background of the Windsor Case in the Lower Courts

Same-sex couple Edith Windsor and Thea Spyer were married in Canada and then moved to New York, where their marriage was recognized as valid.  After Spyer passed away, Windsor sued the United States in federal district court to challenge the federal estate tax that she owed on account of the federal government’s failure (pursuant to the DOMA) to recognize her marriage under federal law.  (Had the federal government considered her marriage valid, Windsor would have been entitled to the marital exemption to the federal estate tax.)

Not long after the suit was filed, the U.S. Attorney General notified Congress that he and the President had concluded that they agree with the position taken by Ms. Windsor, that DOMA is unconstitutional.  The Attorney General stated that the United States would, however, continue to enforce DOMA until it is repealed or definitively declared invalid by the courts.

Because the Justice Department had made clear its intent not to defend DOMA in court challenges (even as it continues to enforce the terms of DOMA), an organization known as the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) sought to intervene as a defendant in the Windsor case in order to present a defense, on behalf of the DOMA and the House, to Windsor’s challenge.  The district court ultimately allowed BLAG to intervene in the case, and then ruled in Windsor’s favor on the merits.  The Department of Justice and BLAG both appealed to the United States Court of Appeals for the Second Circuit, although the DOJ continued to assert its agreement with Ms. Windsor on the merits of her challenge.  The Second Circuit affirmed the district court on the merits, and the Department of Justice asked the Supreme Court to take review.  The high Court granted review, but in so doing asked for briefing on whether BLAG is a proper party in the case under Article III of the federal Constitution and (if not) whether the agreement between the plaintiff and the United States government on the merits of the lawsuit prevents the Court from rendering an opinion on those merits.  The Court then appointed law professor Vicki Jackson of Harvard to provide briefing on these questions of standing and justiciability.

An Analysis of the Arguments Advanced in Professor Jackson’s Brief

Professor Jackson filed her brief a few weeks ago, in which she argued that BLAG does not enjoy standing in federal court to defend the DOMA, and that in the absence of BLAG, the agreement between the U.S. government and Windsor should prevent or disincline the Court to address the merits of the dispute.  (Of course, BLAG will respond with its own brief.)

As to the crucial question of BLAG’s ability to defend the DOMA when the executive branch won’t, Professor Jackson correctly identifies the 1983 Supreme Court case of INS v. Chadha as a key precedent in the area.  There, the Court permitted the House and Senate to defend the federal statutory device known as the “legislative veto” when the federal executive branch refused to defend the device against constitutional challenge by a private person.  A legislative veto is a mechanism by which one or both houses of Congress can, without involving the President, effectively block executive branch action after it has been taken but before it has gone into effect.  In Chadha, the challenger and the federal executive branch both believed that the legislative veto gave Congress authority beyond what the Constitution conferred, and in so doing violated the principle of separation of powers.  (On the merits, the Supreme Court agreed with the challenger and the executive branch, and invalidated the legislative veto in question there.)

Professor Jackson argues that the ability of the House and Senate to defend in Chadha is distinguishable from BLAG’s ability to defend in the DOMA case, for three reasons:  (1) the statute being challenged in Chadha was one that conferred on each house of Congress particular powers (the ability to veto executive actions), and so Congress had a “special legislative prerogative” in defending the legislative veto, above and beyond the interest Congress has (presented by BLAG) in defending all congressional enactments; (2) both Houses of Congress participated in Chadha, whereas BLAG, at most, represents only the House of Representatives; and (3) in Chadha, pursuant to a federal statute, each house of Congress explicitly authored its chamber’s participation in the lawsuit, whereas there is no federal statute authorizing the House to participate, and the House of Representatives itself did not explicitly authorize BLAG to represent it until after the lower court had already processed Ms. Windsor’s case.

The first distinction is quite interesting.  On one hand, the executive branch is in a particularly awkward position when it is asked to defend a statute that is not only arguably unconstitutional, but unconstitutional precisely because it invades the province of the executive branch vis-à-vis the legislature.  In such circumstances where there is an institutional conflict of interest, it may be hard for the executive branch to give a robust defense, and we may not want to encourage the executive branch to defend the statute in a half-hearted way, but instead encourage (by allowing Congress to defend itself) the executive branch to stay out of the dispute altogether.  (Notice that for these purposes, I am refining Professor Jackson’s first proffered distinction to focus not on the aggrandizement of congressional powers, but rather on the invasion of the executive’s powers.  If Congress, for instance, tried to assert new powers to veto actions of the judiciary, the executive branch would not be placed in an awkward position, and so I think that the justification for congressional standing would be weaker than in Chadha, even though both settings might technically satisfy Professor Jackson’s criterion of the presence of a special legislative prerogative.)

On the other hand, Congress’ interest in having its laws defended certainly is not limited to those laws that specially empower Congress; many statutes that regulate or empower persons outside of Congress are very important to the congressional agenda as well.  Moreover, four years after Chadha—in a case in which the Supreme Court held that a state legislature enjoyed standing in federal court to defend a measure when the state executive branch declined to do so, Karcher v. May—the statute at issue had nothing to do with expanding legislative powers, but instead required public schools to observe a moment of silence (which challengers argued violated the Establishment Clause of the First Amendment).

Professor Jackson tries to deal with Karcher on this point by asserting that because federal separation of powers principles “do not necessarily apply to the organization of state governments, judicially cognizable injuries for congressional and state legislators may differ.”  It is true that state constitutions may permit state legislatures to do things that Congress cannot, but if the question is—as Professor Jackson rightly says it is—whether a legislature has any distinct interest that it is allowed to vindicate in federal court, Karcher does make it harder, though perhaps not impossible, for the Court to draw the first distinction that Professor Jackson offers.

Professor Jackson’s second and third bases for distinguishing Chadha are cleaner, I think.  The second distinction—the need for both Houses of Congress, and not just one, to be involved before legislative standing is allowed—does draw support from the facts of Chadha (and those of Karcher, for that matter, where the leaders of both chambers of the New Jersey legislature intervened to defend), and also from the fact that Article I of the U.S. Constitution vests legislative power in a single “Congress,” to be comprised of two chambers.  In the DOMA context, the House has no greater interest in defending the measure than does the Senate, so that the Senate’s absence from the litigation arguably undermines the House’s claim to judicial redress.

And as to the third basis for distinguishing Chadha—the need for actual authorization of a legislative chamber before anyone can assert federal standing on its behalf—Chadha is also quite different from the present situation, because both the House and Senate in Chadha explicitly authorized participation in the lawsuit.  Moreover, although Professor Jackson’s brief doesn’t discuss Karcher in this regard, Karcher (even though it undermines Professor Jackson’s first distinction) is the best support for her third distinction—that formal authorization is required.  In refuting the argument that leaders of the New Jersey legislature could not assert legislative standing because they were not authorized to do so, the Court in Karcher explicitly discussed how New Jersey law empowered the leader of each chamber to represent the body in court, and pointed out that the participation of the legislative leaders in that case was premised on that legislative authorization.  Thus, in perhaps what is the Court’s most extensive discussion of legislative body standing (more elaborate than anything the Court said in Chadha), the Court indicated the need for authorization by the body in question for that body to participate.  This is particularly important, because the Court has often observed that what it has done with regard to justiciability issues in past cases is much less important than what it has said when it was explicitly addressing such issues.

As an aside, I note that in concluding in Karcher that New Jersey law authorized the legislature to participate when the executive branch isn’t defending, the Court cited a New Jersey case that really didn’t support the U.S. Supreme Court’s conclusion: the New Jersey case that was cited involved the legislature participating alongside the executive branch, not in lieu of it, in defending a state statute.  But even if the U.S. Supreme Court’s reading of New Jersey law was flawed, the important point here is the Court’s insistence that there be legislative authorization before legislative body standing can be permitted.  And, in the present case, as Professor Jackson points out, the House’s formal approval of BLAG’s representation of it did not come until very late in the day—indeed, after the Supreme Court had granted cert.  Moreover, there is no federal statute, akin to the state law the Court found to be present in Karcher, that authorizes the House to be involved at all.

How Will the Court Resolve the Issue of BLAG’s Standing or Lack Thereof?

None of this is to say Professor Jackson’s arguments will necessarily carry the day.  As noted above, BLAG will have a chance to present its counterarguments.  Moreover, because the Supreme Court itself hasn’t been careful and/or fully explanatory in cases in which it has permitted individuals outside the executive branch to defend congressional statutes when the executive branch won’t, the Court is writing on a slate with some support on both sides of the ledger, and that gives it some wiggle room to support a decision either way.

For example, in Dickerson v. U.S., the federal executive branch and the criminal defendant both agreed that the statute on which the Court of Appeals had relied was unconstitutional, and the judgment below should be reversed.  And yet the Supreme Court nonetheless reached the merits of the case, by appointing a law professor to write a brief defending the statute.  It is true, as Professor Jackson points out, that Dickerson (unlike Windsor) was not a case in which the United States sought Supreme Court review, but the fact remains that the Supreme Court in Dickerson resolved the merits of the dispute, without ever explaining why a “case or controversy” within the meaning of Article III was in existence at the time of its ruling, in light of the fact that both parties agreed that the law was unconstitutional and that the result below was wrong.

Another case that creates additional murkiness is the 2011 decision in Camreta v. Greene, in which the Court said that individual executive branch government officials had standing to appeal a decision by a lower court that had ruled in their favor on a damage claim against them, but that had also found their actions unconstitutional, because the officials had a cognizable interest in being able to perform their public duties unburdened by a wrongheaded judicial ruling.  If individual executive branch officials (as distinguished from the executive branch representing the government more generally) have such an interest in being able to do their jobs the way that they want to and think is permissible, then why shouldn’t individual legislators or legislative chambers have the same interest?  Members of Congress want to be able to do their jobs—vote on bills—without being affected by wrongheaded judicial rulings, and yet individual members of legislatures clearly have no standing.  In short, the Court has not been clear or coherent in this corner of standing law, any more than it has in the overall doctrine of Article III standing. (Indeed, the Court has never adequately explained what the specific objectives of standing and other justiciability doctrines should be, and instead has offered only vague invocations of separation of powers.)

Still, this softness in standing doctrine may be something that the Court can use to its advantage.  My guess is that the Court is not particularly eager to take up the merits of the DOMA case and has granted review only because a few federal appeals courts had held the DOMA invalid. By contrast, had the lower courts upheld the DOMA, I would have been surprised to see the Court grant review.  The Court’s disinclination to resolve the DOMA merits may stem in part from the fact that—unless the Court were to strike down the DOMA purely on federalism grounds, as the First Circuit seemed to do—any ruling either upholding or invalidating the DOMA would likely have significant analytic implications for the laws in all the dozens of states that ban same-sex marriages.  And the Court may not want to resolve the legality of all these state laws until more states come to rest on this question.  (That is why the Court may be similarly hesitant to resolve the merits of the Proposition 8 case.)  For these reasons, I won’t be surprised if the Court (or a large enough number of individual Justices on the Court) effectively defers these cases and avoids issuing dispositive rulings on the merits using the flexible justiciability doctrine.  Such a move may buy the Court only a few years, but on this social question in particular, the pace of change across the national landscape has been remarkably rapid.

Vikram David AmarVikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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  • Jaack McMahon

    Why did the Senate stay out of the case, leaving it to the “Bipartisan’ Legal Advisory Group of the House of Representatives ? Does the Senate feel, along with the Executive Branch, that DOMA is unconstitutional too? The Court didn’t have a problem with Living v Virginia 388 U. S. 1 declaring the anti-miscegenation statutes unconstitutional. 16 states had laws against mixed white/non-white marriages. Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period. The US Supreme Court decision in Meyer v Nebraska – 262 U.S. 390(1923) specifically pointed out freedom to marry in the Due Process Clause “…Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

    Being a gay or lesbian does NOT negate these rights, so eloquently elucidated by Justice McReynolds decided June 4, 1923. That’s almost 90 years ago, people were fighting against prejudice and WON!

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