The U.S. Supreme Court has invited a Harvard professor to argue that the nine justices cannot hear one of the two same sex marriage cases it is slated to rule on in spring of 2013. The Associated Press reported that constitutional law professor Vicki C. Jackson has been asked to testify in the hearings in March, not as to whether or not same sex marriages should be legal, but rather to argue that the court should not even consider ruling in the case involving the Defense of Marriage Act (DOMA).

Raw Story spoke with John Davidson, legal director of Lambda Legal, the LGBT legal advocacy group, who said that the Court is asking two questions regarding their power to hear the case.

"One is 'Does the Department of Justice have the ability to bring the case before them?'" because its position prevailed in United States v. Windsor, the DOMA case that is being brought before the court.

The other question, said Davidson, is whether or not a Republican-led House of Representatives group should be allowed to defend the Act.  The Bipartisan Legislative Action Group (BLAG) is a five-member panel made up of Speaker of the House Rep. John Boehner, House Majority Leader Rep. Eric Cantor (R-VA), House Minority Leader Rep. Nancy Pelosi (D-CA), Majority Whip Rep. Kevin McCarthy (R-CA) and Minority Whip Steny Hoyer (D-MD).

This is a rare case, said Davidson, "in that a plaintiff sued the U.S. government and the government said, 'We agree with the plaintiff.  We agree with the person suing.  This law that was passed by Congress and signed by the president, we now believe is unconstitutional, so we're not going to defend it anymore.'  That has happened several dozen times in history in the United States, but it's an unusual circumstance."

DOMA was enacted in 1996, and defined marriage as being between one man and one woman under federal law, and as such denied same sex partners of federal employees the benefits granted to heterosexual spouses, among other things.  In February of 2011, on the strength of a Second Circuit Court ruling against DOMA, President Barack Obama ordered the Justice Department to stop defending the Act in court.

According to the SCOTUSblog, Jackson is expected to argue that for BLAG to defend DOMA is a violation of Article III of the Constitution, which enumerates the powers of the executive branch. "The professor will appear in the case as an amicus to make only those points, not to join in the debate over the constitutionality of DOMA, which the court will also be considering," wrote Lyle Denniston.

The Court, said Denniston, is asking Jackson to argue the case's procedural points as part of the decision as to what party's petition against the Second Circuit Court's ruling in United States v. Windsor to hear, BLAG's or the federal government's.  The 3 Republicans currently controlling BLAG argue that because the federal government got its way in the lower court decision, it's not the proper party to be appealing the ruling.  Professor Jackson will be arguing against both as the proper parties.

Lambda's Davidson said that it's highly unlikely that the Court will not take the case, and equally unlikely that BLAG, which is essentially a legal advisory group for Congress and has no jurisdiction before the court, will be chosen as the petitioner in the case.  The group consists of Speaker of the House Rep. John Boehner (R-OH), the majority and minority leaders of the House and the majority and minority whips.

"There have been prior cases where the Department of Justice wasn't defending where the Court allowed Congress to step in," he said.  "But this (BLAG) isn't Congress.  This is a committee of one house of Congress.  They assert that they are the institutional voice for the House, but they don't cite anything for that.  There's nothing to point to that gives them that authority."

The other same sex marriage case the Court is scheduled to hear in March involves the constitutionality of California's Proposition 8, which stripped the state's LGBT people of their right to marry.  In that case, the Court will rule whether a lower court's decision striking down the measure should be allowed to stand.

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