How Congress Could Defend DOMA in Court (and Why the BLAG Cannot)
Stanford Law Review Online, Vol. 65, pp. 92, 2013
12 Pages Posted: 28 Jan 2013 Last revised: 2 Oct 2015
Date Written: January 28, 2013
In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor's challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor's equal protection and due process claims, but also on the question whether the defendants — the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG) — have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straight-forward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing. If the Court so holds — as it should — its decision will have repercussions for Edith Windsor and dozens of other litigants with DOMA cases pending in lower federal courts. And the Court’s handling of the standing question may also have enduring significance for the law of legislative standing and constitutional separation of powers.
Keywords: Defense of Marriage Act, standing, Windsor v. United States, gay or same-sex marriage, federal jurisdiction, Bipartisan Legal Advisory Group, constitutional law, civil procedure, Article III
JEL Classification: K19
Suggested Citation: Suggested Citation