Law School Professor To File Brief on DOMA Case

Just days after the U.S. Supreme Court announced that it would weigh in on two important cases addressing same-sex marriage, it has asked Harvard Law School professor Vicki C. Jackson to argue that the court does not actually have the authority to hear one of those cases.

The court invited Jackson on Tuesday to file an amicus brief arguing that it is unconstitutional for the body to rule on United States v. Windsor, one of two cases addressing the federal Defense of Marriage Act.

Jackson will assert that because the Obama administration has chosen to no longer defend the 1996 law, agreeing with the decision made by a lower court that it is invalid, the court does not have the authority to rule on the case.

A group of senior Republican leaders from the House of Representatives have stepped in to defend the law by taking the place of the executive branch in the case. Jackson will assert that they are not allowed to do so under Article III of the Constitution, meaning the court should drop the case entirely.

Jackson will not argue directly about the constitutionality of DOMA.

Jackson has been a professor at Harvard Law School since 2011. Previously, she was a constitutional law professor at Georgetown University Law Center, where she also served as an associate dean for research and academic programs.

She has researched and written extensively about constitutional law as an academic and as a legal counsel with the U.S. Department of Justice.

Jackson is not the only Harvard Law professor tapped as an amicus curiae in recent memory. John F. Manning ’82 briefed the court regarding federal reimbursement of hospitals under Medicare earlier this year.

Both United States v. Windsor and Hollingsworth v. Perry, a case originally raised in California courts, could potentially lead to the federal redefinition of marriage, which currently says that marriage is a union between one man and one woman. United States v. Windsor was originally raised in New York.

Same-sex couples have long lobbied for a more inclusive definition of marriage that would provide them the same rights and financial benefits enjoyed by married heterosexual couples under the current law.

The court’s decision likely reflects a recent shift in public support in favor of same-sex marriage, as demonstrated by national polling.

The court will likely hear oral arguments for both United States v. Windsor and Hollingsworth v. Perry in March and issue its final decisions on both cases in June 2013.

—Staff writer Nicholas P. Fandos can be reached at nicholasfandos@college.harvard.edu.