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Monday, January 28, 2013

Hall on standing in DOMA litigation

When SCOTUS granted cert in United States v. Windsor to consider the constitutionality of DOMA, I flagged my exchange with Matthew Hall (Georgia) in Fordham Law Review over whether the Bipartisan Legal Advisory Group (BLAG) had standing to represent the United States in the case (as well as whether the Prop 8 sponsors had standing to represent California in the same-sex marriage case).

Matt is back at it, with a new essay in Stanford L. Rev. Online explaining why BLAG lacks standing--it has not been authorized to litigate either by statute or by House resolution. Definitely worth a read, especially if it begins to look as if the Court will take the jurisdictional out in the case. If Matt is right that BLAG is without standing allows the Court to vacate everything that has happened thus far in the case and send it back to the district court to begin from scratch.

Posted by Howard Wasserman on January 28, 2013 at 03:26 PM in Article Spotlight, Howard Wasserman | Permalink


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Even if the Court were to hold that the U.S. lacks standing to appeal, it doesn't necessarily follow that the U.S. lacked standing in the district court. That is, in the District Court, Windsor clearly had standing to sue, and she sought a judgment against the U.S. for over $360k, which gives the U.S. standing to defend (assuming, as appears to be the case, that the U.S. was unwilling to refund the $360k without a judgment in Windsor's favor).

Posted by: Matt Hall | Feb 1, 2013 4:47:00 PM

But would the court accept a judgment in which a party lacking standing provided the primary defense of the statute? Or might the Court send it back to the district court and make the district court do it all over again?

Posted by: Howard Wasserman | Jan 28, 2013 4:44:52 PM

Thanks Howard. FWIW, as I argue in the piece, the BLAG's lack of standing may be significant as to the Court's jurisdiction and that of the 2nd Circuit, but only if the Court also holds that the executive branch litigants lack standing. And even then, I'm not sure the Court could vacate the District Court opinion. Assuming that no one had standing to appeal or petition for cert, there's the matter of the $363,000 that Speyer's estate paid in estate taxes, and which Windsor wants refunded. It's beyond the scope of this short paper, but I would think that the District Court must still have jurisdiction to adjudicate entitlement to the money, which likely necessitated its deciding DOMA's constitutionality.

Posted by: Matt Hall | Jan 28, 2013 4:40:04 PM

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