The U.S. Supreme Court is not in a legal position to rule now on the constitutionality of a 1996 federal law that bars benefits to same-sex couples, a Harvard University law professor told the justices in a brief they requested.
In arguments submitted Thursday, constitutional law scholar Vicki Jackson contends that House Republicans do not have a right, or "standing," to defend the Defense of Marriage Act in view of the Obama administration's refusal to defend the law it considers unconstitutional.
In addition, Jackson argues, the Supreme Court does not have legal jurisdiction over the case because the White House and Justice Department agree with a federal appeals court ruling striking down the statute last year. As a result, she noted, there is "no injury to invoke" a case for the justices to consider.
The Supreme Court agreed in December to review House Republicans' appeal of the DOMA decision, which came in a case out of New York. In the process, the court put several other DOMA challenges on hold, including a case out of San Francisco in which a federal judge found the law unconstitutional.
At the same time, the justices specially appointed Jackson to outline arguments on whether they have legal grounds to decide the merits of the issue. House Republicans are expected to respond next month, but have maintained that Congress has a right to defend a law when the executive branch refuses to do so.
The Supreme Court also is reviewing the legality of California's Proposition 8, the 2008 voter-approved ban on same-sex marriage that has also been found unconstitutional in the lower courts. In that case, the justices also have asked for arguments on whether Proposition 8's sponsors have standing to defend the law when the governor and attorney general have refused to appeal the case.
If the Supreme Court decides both cases are not properly before them under fundamental federal court procedures, it could lead to an unsatisfying result for those seeking a resolution of the legal battle over same-sex marriage. The justices would leave for a later day the central questions raised in whether the states and federal government can outlaw same-sex marriage.
For California, that would leave intact a ruling invalidating Proposition 8, opening the door for same-sex couples to marry legally.
The Supreme Court is set to hear arguments March 26 in the Proposition 8 case, and the following day in the DOMA challenge.
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz