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Windsor: Alito Dissent

Windsor: Alito Dissent

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Published by Equality Case Files
12-307 USA v Windsor DOMA
12-307 USA v Windsor DOMA

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Categories:Business/Law
Published by: Equality Case Files on Jun 26, 2013
Copyright:Attribution Non-commercial

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07/10/2013

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 _________________  _________________ 
1Cite as: 570 U. S. ____ (2013) A 
LITO
, J., dissenting
SU 
PREME
 
CO
RT
 
O
F
 
THE
UN 
I
TE
D S
T
A
TE
S
No. 12307
UNITED STATES, PETITIONER
v.
EDITH SCHLAIN
 
WINDSOR,
IN HER CAPACITY AS EXECUTOR OF THE
 
ESTATE OF THEA CLARA SPYER,
ET AL
.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
 
[June 26, 2013]
J
USTICE
 A 
LITO
, with whom J
USTICE
T
HOMAS
 joins as toParts II and III, dissenting.Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom, about the natureof the institution of marriage. Respondent Edith Windsor,supported by the United States, asks this Court to inter-vene in that debate, and although she couches her argu-ment in different terms, what she seeks is a holding thatenshrines in the Constitution a particular understandingof marriage under which the sex of the partners makesno difference. The Constitution, however, does not dictatethat choice. It leaves the choice to the people, actingthrough their elected representatives at both the federaland state levels. I would therefore hold that Congress didnot violate Windsors constitutional rights by enacting §3of the Defense of Marriage Act (DOMA), 110 Stat. 2419,which defines the meaning of marriage under federalstatutes that either confer upon married persons cer-tain federal benefits or impose upon them certain federalobligations.II turn first to the question of standing. In my view, the
 
 
2 UNITED STATES
v.
WINDSOR A 
LITO
, J., dissenting
United States clearly is not a proper petitioner in thiscase. The United States does not ask us to overturn the judgment of the court below or to alter that judgment inany way. Quite to the contrary, the United States arguesemphatically in favor of the correctness of that judgment.We have never before reviewed a decision at the solebehest of a party that took such a position, and to do sowould be to render an advisory opinion, in violation of  Article IIIs dictates. For the reasons given in J
USTICE
S
CALIA 
s dissent, I do not find the Courts arguments tothe contrary to be persuasive.Whether the Bipartisan Legal Advisory Group of theHouse of Representatives (BLAG) has standing topetition is a much more difficult question. It is also a signifi-cantly closer question than whether the intervenors in
Hol-lingsworth
v.
 Perry
,
ante,
p.___which the Court alsodecides todayhave standing to appeal. It is remarkablethat the Court has simultaneously decided that the UnitedStates, which receive[d] all that [it] ha[d] sought below,
 Deposit Guaranty Nat. Bank
v.
Roper
, 445 U. S. 326, 333(1980), is a proper petitioner in this case but that theintervenors in
Hollingsworth
, who represent the partythat lost in the lower court, are not. In my view, both the
Hollingsworth
intervenors and BLAG have standing.
1
  
1
Our precedents make clear that, in order to support our jurisdic-tion, BLAG must demonstrate that it had Article III standing in its ownright, quite apart from its status as an intervenor. See
 Diamond
v.
Charles
, 476 U. S. 54, 68 (1986) (Although intervenors are consideredparties entitled, among other things, to seek review by this Court, anintervenors right to continue a suit in the absence of the party onwhose side intervention was permitted is contingent upon a showing bythe intervenor that he fulfills the requirements of Art. III (citationomitted));
 Arizonans for Official English
v.
 Arizona
, 520 U. S. 43, 64(1997) (Standing to defend on appeal in the place of an original de-fendant, no less than standing to sue, demands that the litigant possessa direct stake in the outcome (internal quotation marks omitted));
id
.,
 
 
3Cite as: 570 U. S. ____ (2013) A 
LITO
, J., dissenting
 A party invoking the Courts authority has a sufficientstake to permit it to appeal when it has suffered aninjury in fact that is caused by the conduct complainedof and that will be redressed by a favorable decision.
Camreta
v.
Greene
, 563 U. S. ___, ___ (2011) (slip op., at 5)(quoting
Lujan
v.
 Defenders of Wildlife
, 504 U. S. 555,560561 (1992)). In the present case, the House of Repre-sentatives, which has authorized BLAG to represent itsinterests in this matter,
2
suffered just such an injury.In
INS 
v.
Chadha
, 462 U. S. 919 (1983), the Court heldthat the two Houses of Congress were proper parties tofile a petition in defense of the constitutionality of theone-house veto statute,
id.
, at 930, n. 5 (internal quota-tion marks omitted). Accordingly, the Court granted anddecided petitions by both the Senate and the House, inaddition to the Executives petition.
Id
., at 919, n.*. Thatthe two Houses had standing to petition is not surprising:The Court of Appeals decision in
Chadha
, by holding theone-house veto to be unconstitutional, had limited Con-gress power to legislate. In discussing Article III stand-ing, the Court suggested that Congress suffered a similarinjury whenever federal legislation it had passed wasstruck down, noting that it had long held that Congress isthe proper party to defend the validity of a statute whenan agency of government, as a defendant charged withenforcing the statute, agrees with plaintiffs that the stat-ute is inapplicable or unconstitutional.
Id
., at 940.The United States attempts to distinguish
Chadha
on
  at 65 (An intervenor cannot step into the shoes of the original partyunless the intervenor independently fulfills the requirements of ArticleIII (internal quotation marks omitted)).
2
H. Res. 5, 113th Cong., 1st Sess., §4(a)(1)(B) (2013) ([BLAG] con-tinues to speak for, and articulates the institutional position of, theHouse in all litigation matters in which it appears, including in Wind-sor v. United States).

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