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Fri Jan 25, 2013, 05:21 PM

Law Professor Challenges Supreme Court's Jurisdiction Over DOMA

A Harvard law professor has filed a brief with the U.S. Supreme Court arguing that it does not have the jurisdiction to hear a challenge to the Defense of Marriage Act and that the Republican congressional leaders defending the law do not have the authority to do so.

Vicki C. Jackson filed the brief Thursday night. She was appointed by the Supreme Court to present these arguments, “because, presumably, the justices decided they wanted a view outside of the views presented before lower courts on these questions,” BuzzFeed reports. “By the terms of that appointment, then, it was expected that Jackson would be arguing these views.”

The brief relates to lesbian widow Edie Windsor’s challenge to DOMA; as the federal government, because of DOMA, did not recognize her marriage to Thea Spyer, she owed estate taxes after Spyer’s death that she would not have owed had her spouse been a man. Therefore, she sued the federal government, and lower courts have ruled in her favor.

The Obama administration’s Department of Justice has stopped defending DOMA, with the Republican-led House Bipartisan Legal Advisory Group taking over defense of the antigay law. Jackson says the administration’s agreement with the lower courts and with Windsor deprives the Supreme Court of jurisdiction over the case. BLAG, meanwhile, does not have authority to defend the law, she writes.

http://www.advocate.com/politics/marriage-equality/2013/01/25/law-professor-challenges-supreme-courts-jurisdiction-over-doma

Just when I thought I was getting a grasp on what was going on with all the players... another twist. I would ask someone to wake me when it's over, but I may be sleeping forever. And as for This coming June I'm beginning to fear there will be more unanswered than answered.

7 replies, 1065 views

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Arrow 7 replies Author Time Post
Reply Law Professor Challenges Supreme Court's Jurisdiction Over DOMA (Original post)
William769 Jan 2013 OP
msanthrope Jan 2013 #1
William769 Jan 2013 #2
msanthrope Jan 2013 #3
longship Jan 2013 #4
Still Sensible Jan 2013 #5
customerserviceguy Jan 2013 #6
pinto Jan 2013 #7

Response to William769 (Original post)

Fri Jan 25, 2013, 05:30 PM

1. This could be a narrow point that Roberts can concur on....and punt.

Which would result in victory.

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Response to msanthrope (Reply #1)

Fri Jan 25, 2013, 05:32 PM

2. I'll take anything that results in a victory for us.

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Response to William769 (Reply #2)

Fri Jan 25, 2013, 05:39 PM

3. Well, if they go this route--finding that SCOTUS has no jurisdiction and/or

finding that BLAG has no standing, then SCOTUS does not have to rule on other constitutional issues.

Which may be what Roberts wants.

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Response to William769 (Original post)

Fri Jan 25, 2013, 05:42 PM

4. Vicki C. Jackson



Appointed as Thurgood Marshall Professor of Constitutional Law at Harvard.

http://www.law.harvard.edu/faculty/directory/index.html?id=731

Wiki:
http://en.wikipedia.org/wiki/Vicki_C._Jackson

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Response to William769 (Original post)

Fri Jan 25, 2013, 05:46 PM

5. It would allow a victory on this case, but

if it was settled on this basis, it would not mean as much to the big picture. It wouldn't hurt, in that there would be positive case law in the one circuit.

On the other hand, if the court rejects this argument, hears the case, and upholds DOMA, it would clearly be a worse outcome.

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Response to Still Sensible (Reply #5)

Fri Jan 25, 2013, 05:59 PM

6. Agreed

I'd much rather see a case involving equal marriage come to (and be decided by) the Supreme Court after we have several more states along the path to equality. By the time Loving vs. Virginia was decided, laws against interracial marriage were only being actively enforced in a very small number of states, with laws left over from Reconstruction days.

DOMA is less than twenty years old, and the stains that the vast majority of states have soiled their constitutions with are all newer than that. While I'm sure that there are those who hope for a Warren court style strikedown of homophobia, I'm not assured that the present makeup of the Court allows for that at this time.

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Response to William769 (Original post)

Fri Jan 25, 2013, 07:18 PM

7. Seems an appeal to SCOTUS is typical, yet she makes a good, pertinent point ->

“It is the Executive Branch, not Congress, that is obligated to ‘take Care’ that laws are enforced,” her brief states. “Moreover, any injury that might arise from non-defense of a law would be to the whole Congress, which one House cannot alone assert.”

i.e. A group of House Republicans doesn't have standing to solely challenge enforcement of legislation before SCOTUS. Seems they simply put together a group of Repubs that disagreed with the Appeals Courts decisions and are trying to run a Congressional partisan defense of DOMA. Enforcement of legislation is an Executive function. And the Executive has chosen has stopped defending DOMA.

No clue to how this will play out, but in this layman's opinion she has a good point. I wouldn't be surprised to see SCOTUS leave the Appeals Courts' findings in place.

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