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3 Reasons SCOTUS Can't Rule on DOMA

By Robyn Hagan Cain | Last updated on

Article III is famously short, but it really packs a punch. A punch that could knock the Defense of Marriage Act challenge right out of court.

The Constitution limits judicial review to cases and controversies. According to an amicus brief submitted by Harvard Law Professor Vicki Jackson, the DOMA appeal — U.S. v. Windsor — no longer qualifies for the controversy distinction because the Obama administration and the lower courts agree that DOMA is unconstitutional.

In December, the Court tasked Jackson with arguing that it did not have standing to hear Windsor, The Harvard Crimson reports. Last week, Jackson filed her brief. The short version? Everyone loses.

First, Jackson explained, "Article III's case-or-controversy limits apply at every stage of the litigation, and to litigation with the United States ... Although the United States' distinctively governmental interests may affect standing in circumstances denied private parties, it cannot ask Article III courts to resolve disputes unless they meet the case-or-controversy criteria."

Since the government agrees that Second Circuit litigant Edie Windsor deserved to win because DOMA is invalid, the government "offers no concrete injury to its legal interests ... sufficient to invoke the jurisdiction of this Court," SCOTUSblog reports.

(Ironically, the reasoning in Jackson's brief suggests that the Obama administration may have hurt the gay rights movement by refusing to defend DOMA.)

Second, Jackson posits that it would be imprudent for the Supreme Court to consider the matter. The Court has discretionary power to review lower court decisions, but Jackson claims there's actually no reason for the Court to wade into DOMA water because none of the federal appellate courts have upheld the law. Right now, Jackson argues that the only reason for the Supreme Court to weigh in on Windsor is because it wants to do so. That motive is not constitutionally sound.

The House of Representatives Bipartisan Legal Advisory Group (BLAG) also loses under the harsh scope of Jackson's review because the group "asserts only a generalized interest in seeing statutes that Congress enacted implemented, an interest that is widely shared by the people at large." Without a "judicially cognizable, concrete injury to itself, to the House of Representatives or to Congress," BLAG lacks standing.

Jackson makes strong arguments against a DOMA ruling. Will the Nine heed her advice, or do you think they'll find a way to justify a DOMA decision?

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