If Congress Doesn’t Step Up…

Timothy Kincaid:

The House of Representatives has a small window in which to decide whether to defend DOMA in court. Should they fail to do so, then in March the courts will be presented with a motion for summary judgment (a request for a trial-less determination) which argues that DOMA Section 3 is unconstitutional, and in response the DOJ will say, “I got nothing.”

Presented with only one side, it is extremely probable that the judges will find for the plaintiffs and order the federal government to recognize their marriages. This could be limited to specific circumstances for individual plaintiffs or applied broadly against the United States and applicable to all same-sex marriages. However, without appeal to the US Supreme Court, then these decisions will only apply to same-sex married couples in Second Circuit states (Connecticut, Vermont, New Hampshire, and New York).

This misses two points.  First, the DOJ’s response is not “I got nothing.” Any judge can fail to adopt plaintiffs’ argument that elevated review should apply to the case. Should that happen, General Holder explained he would defend, if asked, on the basis of earlier arguments:

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard.

And, it’s not clear to me why Congress would not have appellate standing. True, an individual congressman in his personal capacity could not appeal the decision. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986). But if Congress can prosecute the case in the district courts, I see no reason the appeals courts should be any different.

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