Lawyers representing House Republicans
and the Obama administration on Friday each claimed the other cannot
participate in a lawsuit before the Supreme Court challenging the
Defense of Marriage Act (DOMA).
The Bipartisan Legal Advisory Group
(BLAG), under the direction of House Speaker John Boehner, a
Republican from Ohio, filed a legal brief in the case, known as
Windsor v. United States, arguing that the Justice Department
lacks the legal standing to participate in the lawsuit because it
received the outcome it sought in lower courts.
“It obtained the precise relief it
believed was appropriate based on the precise theory [heightened
scrutiny] it advocated,” BLAG lawyers wrote. “The executive can
fare no better before this Court. While this Court's affirmance
would have a greater precedential impact, the executive cannot ground
its appellate standing on a desire for an opinion with the identical
effect on this case and controversy, but a broader precedential scope
for other cases.”
After the Justice Department announced
in 2011 that it would no longer defend the law in court, Boehner
directed BLAG to step in. BLAG hired former Solicitor General Paul
Clement to argue more than a dozen cases challenging the
constitutionality of DOMA, which bans federal agencies from
recognizing the legal marriages of gay and lesbian couples.
In a brief addressing jurisdictional
questions in the case, the Justice Department argued that BLAG lacks
standing in the case.
“BLAG is an entity located within the
Legislative Branch,” DOJ lawyers wrote. “The Constitution
assigns to that Branch only specifically enumerated 'legislative
powers.' … Although Congress (and the individual Houses) may create
offices to assist with legislative tasks, the authority of such an
office may not include the 'discretionary power to seek judicial
relief' on behalf of the United States.”
In a separate brief also filed on
Friday, the
administration argued that DOMA is unconstitutional and should be
struck down.