Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states:
The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.
The fact that the House Democratic Leadership supports BLAG’s standing to defend the constitutionality of DOMA tells the Supreme Court, in no uncertain terms, how vital the House considers its right to defend the constitutionality of statutes where the executive branch refuses to do so. If the Court is looking for an “easy out” from this case, this makes it harder. Although it is arguable that the House Democrats are only supporting BLAG’s “Article III standing,” as opposed to prudential standing requirements that the Court might decide to apply, it is even more noteworthy that they are supporting BLAG’s standing, not just the House’s. The House Democratic Leadership evidently agrees that BLAG was properly authorized to represent the House in this litigation, which is a key jurisdictional question.
Full disclosure: I am representing 10 Senators in this case on an amicus brief in support of DOMA’s constitutionality.