The Supreme Court’s Examination of Standing in United States v. Windsor[1]

The U.S. Supreme Court’s recent invalidation of Section 3 of the Defense of Marriage Act (DOMA) overshadowed a fascinating procedural law holding.

Typically, when a citizen questions the constitutionality of an act of Congress, the U.S. Government—through the Justice Department—defends the law.  In Windsor, however, the Justice Department notified Congress that it would no longer defend DOMA, although it would continue to enforce it.  Instead, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives was allowed to intervene as an interested party and defend DOMA before the district court.[2]

At first blush, it would appear that the case might fail the requirements of Article 3 of the U.S. Constitution because: (1) Windsor and the U.S. sought the same relief—affirmance of the Second Circuit judgment that found DOMA in violation of the Equal Protection Clause of the 14^th Amendment—leaving no actual controversy for the Court to resolve; and (2) BLAG—the only entity asking the Court to overturn the appeals court judgment—may not have been properly before the Court because it had no particularized protected interest sufficient to show an “injury in fact.”

While acknowledging these “complications,” the Court reasoned that even if the U.S. agreed with Windsor that DOMA was unconstitutional, it retained a sufficient economic injury to support Article III standing.  The fact that the Justice Department had declined to defend DOMA was merely a “prudential” concern that BLAG obviated by offering a vigorous defense, even though the Court found it unnecessary to determine whether BLAG had Article III standing on its own authority.  One gets the sense from the expansive dicta on federalism and equal rights that the majority reverse-engineered its legal reasoning on standing in order to reach a desirable outcome.  If the Treasury had actually refunded the damages Windsor sought, thereby unambiguously vitiating adverseness, the Court would likely have been forced to deny BLAG’s standing to appeal, as it denied similarly situated appellants in the Proposition 8 case.[3]

–Daniel Chertudi