Law Professor Challenges Supreme Court's Jurisdiction Over DOMA

Because the Obama administration is no longer defending the antigay law, the Supreme Court does not have jurisdiction over it, says Vicki C. Jackson. Moreover, Republican congressional leaders have no authority to defend it, she says.

BY Trudy Ring

January 25 2013 3:19 PM ET

Harvard law professor Vicki C. Jackson

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.

“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 nondefense of a law would be to the whole Congress, which one House cannot alone assert.”

The court is scheduled to hear oral arguments in the Windsor case March 27, and the Justice Department, BLAG, and Windsor will have a chance to respond to Jackson’s brief before then.

Meanwhile, the authors of a parenting study cited as an argument against marriage equality say the study doesn’t make that point at all. BLAG cited the 2002 study “Marriage from a Child’s Perspective: How Does Family Structure Affect Children and What Can We Do About It?” in a brief it filed with the Supreme Court in the DOMA case Tuesday, and ProtectMarriage.com, the organization defending California’s Proposition 8 in a separate Supreme Court case, mentioned the study in its filing the same day.

Among the points made by the study, from a nonprofit called Child Trends, is that “the family structure that helps children the most is a family headed by two biological parents,” so BLAG and ProtectMarriage.com took that as an argument against same-sex marriage. But Child Trends president Carol Emig told the Washington Blade the study “summarizes research conducted in 2002, when same-sex parents were not identified in large national surveys. Therefore, no conclusions can be drawn from this research about the well-being of children raised by same-sex parents.”

She added, “We have pointed this out repeatedly, yet to our dismay we continue to see our 2002 research mischaracterized by some opponents of same-sex marriage.”

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