Paul Clement Argues DOJ Can't Litigate DOMA


Paul Clement giving marriage (and DOMA) a strong defense:

Attorneys representing House Republicans in litigation against the Defense of Marriage Act before the Supreme Court are asserting that the Justice Department lacks standing to participate in the lawsuit.

The Bipartisan Legal Advisory Group, under the direction of U.S. House Speaker John Boehner, makes the argument in a 38-page brief filed on Friday in response to the court’s jurisdictional questions on standing in the challenge to Section 3 of DOMA, known as Windsor v. United States.

BLAG argues the Justice Department lacks standing because the Obama administration received the result it wanted from lower courts — including the U.S. Second Circuit Court of Appeals — striking down DOMA.

“It obtained the precise relief it believed was appropriate based on the precise theory (heightened scrutiny) it advocated,” the brief states. “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.” (The Washington Blade)

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