Ken Klukowski is Director, Center for Religious Liberty at Family Research Council. This article appeared on Breitbart.com, March 27, 2013.
The Supreme Court's justices spent a full hour in today's DOMA case, U.S. v. Windsor, debating whether the case should be in court at all.
In each DOMA lawsuit-including Windsor-the Obama Department of Justice (DOJ) has a responsibility to defend DOMA against a constitutional challenge. But President Obama declared that he believes DOMA is unconstitutional and ordered DOJ not to defend it.
The justices discussed whether this means no federal court has jurisdiction to decide the lawsuit. Article III of the Constitution only gives federal courts jurisdiction to decide a "case or controversy." As the Supreme Court has repeatedly held, an essential element of this is that the lawsuit must be adversarial, meaning both parties try to win the case by making a good-faith argument to persuade the court to side with them.
When the plaintiffs sued to get DOMA struck down, DOJ made it clear they wanted the plaintiffs to succeed.
DOMA is defended by Paul Clement and lawyers hired by the U.S. House, but they are not the defendants in this case. The Court must decide if the Constitution allows anyone to step into the shoes of the actual defendants.
As Justice Antonin Scalia noted today, when a defendant agrees with a plaintiff, typically a federal court will only enter a consent judgment, making it official that the parties agree to something and will be bound to continue abiding by that agreement. The Court does not have the power to then consider striking down a law-any law.
If that happens here, all the current DOMA lawsuits would be dismissed, and DOMA would remain on the books until Congress repeals it or a new administration tries to defend it in court.