John Boehner unwittingly paved the way for high court ruling against Defense of Marriage Act


You can file THIS under Poetic Justice:

House Speaker John Boehner spent $3 million of taxpayer money to hire Paul Clement for the Bipartisan Legal Advisory Group (BLAG) to defend the Defense of Marriage Act.

Turns out, that was a pretty good investment for our side. Justice Kennedy, writing for the majority, tells us that once the Justice Department dropped the defense of DOMA, the Court needed someone to step up so they had standing to actually decide the case.

In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of §3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue.

If not for Boehner’s intervention, and the $3 million of taxpayer money he decided to pour into this case, the Court might not have even been able to rule on it. So, thanks, John Boehner!



  1. Robert

    Sometimes I can read things and get the point quickly, but I’ve had to read the italicized part several times and I’m still not sure I understand it. Did it say in a fancy way, because some interested group (that Boehner hired) chose to defend DOMA, it gave the SCOTUSA the legal standing to take the case because it provided two side of the issue?

  2. Robert: What Justice Kennedy said was that the group hired by Boehner to defend DOMA had “standing” in the case. Without somebody with such standing, the court might well have taken a pass on the case. Putting it another way, if there aren’t two adverse parties, the court lacks jurisdiction to hear the case. In the DOMA case, the Justice Department declined to defend the statute. So, until Boehner’s group stepped in (presumably on behalf of the House of Representatives), there weren’t two adverse parties. In the final analysis, Boehner unwittingly saved the day for opponents of DOMA.

  3. Robert

    Thanks Pat.

  4. Steverino

    It’s interesting how these decisions usually rest with Justice Kennedy who hops from one side to the other. BTW if anyone is keeping score the corporations are still ahead by a wide margin.

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