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Post-argument Panel Weighs Same-sex Marriage Cases

March 28, 2013 — March 26 and 27 marked, in the words of Professor Irv Gornstein, executive director of the Supreme Court Institute, “two days of intense argument on one of the most important legal and social issues of our time.”

The issue, of course, is same-sex marriage, which took center stage in Washington this week as the Supreme Court heard oral arguments in the case of Hollingsworth v. Perry — asking whether the state of California can legally define marriage in terms of one man/one woman — and United States v. Windsor, asking whether the federal Defense of Marriage Act is unconstitutional. 

At a Georgetown Law panel discussion just hours after oral arguments in Windsor, experts noted that the Court could avoid addressing those questions — should it find that proponents of California’s Proposition 8 (banning same-sex marriage) or the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives (defending DOMA) have no standing as parties in the case. 

 Those who stood in line for days to hear about important equal protection principles  “must have been somewhat surprised…when they realized that half the [Court’s] time was devoted to what for some might have seemed arcane questions of standing and other jurisdictional considerations,” said Professor Mike Gottesman, who said that standing is a weighty constitutional issue, too. “If we are going to talk realistically about how the case might be decided, one possibility is the question that perhaps the court might duck the substantive issues.”

Gornstein, notably, served as counsel of record on an amicus brief in Hollingsworth, asserting that the Prop 8 supporters had no standing to challenge a lower court judgment that the measure is unconstitutional.  

Adjunct Professor Paul Clement, meanwhile, argued in the Supreme Court on behalf of BLAG as counsel of record in Windsor. Since California officials are choosing not to defend Proposition 8, and the solicitor general of the United States has chosen not to defend DOMA, Prop 8 proponents in Hollingsworth, and BLAG in Windsor, have stepped in to fill those roles.  

While Gornstein and Clement did not participate in Gottesman’s panel, one who did was Akin Gump’s Patricia Millett, whose name appears on a brief with former Georgetown Law Professor Vicki Jackson. Jackson was appointed by the court to brief and argue the position in Windsor that BLAG lacked Article III standing and that the government’s position that DOMA was unconstitutional deprived the Supreme Court of jurisdiction.

“I’m here as the jurisdictional speed bump,” Millett said at the panel. “I hope you understand and see as law students…which ever side you are on, these are enormously important constitutional questions, to the nation and to the individuals who are affected by these laws.”

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