Posted by: captainfalcon | December 8, 2012

More on Standing in Windsor

Looks like I missed something in Windsor — just because the DOJ declines to defend the constitutionality of DOMA does not mean that, absent the BLAG’s having Art. III standing, there isn’t a case or controversy:

Notably, in the DOMA case (United States v. Windsor), the Justices can reject the BLAG’s status as defendant-intervenor and still rule on the merits.  There is an Article III case or controversy between the executive branch and Edith Windsor.  Although the executive is not defending DOMA, it is enforcing the law; in this case, the executive mandated that Windsor pay a federal tax on the estate she inherited from her same-sex spouse.  (If the federal government recognized Windsor’s marriage, she would have been entitled to a spousal deduction.)  The executive thereby injured Windsor and, in so doing, set the stage for a constitutional challenge.  The Court therefore, in our view, properly granted the Solicitor General’s certiorari petition and can resolve the concrete dispute between the executive and Windsor.

This seems absolutely right.  There is nothing in principle wrong with courts ruling on the merits even where a party does not appear on abandons its defense.  The alternative would be totally perverse.  Live and learn.


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