But while Jones discredited the rationales offered for the distinction, Clement notes that Straub did not, instead finding a rational relationship between the definition of marriage in the act and the aims of Congress in enacting the law.
In defining marriage as exclusively between a man and a woman, Clement says, Congress is rationally pursuing the goals of providing a stable structure to raise unintended and unplanned offspring, encouraging the rearing of children by their biological parents and promoting childrearing by both a mother and a father.
He lauds Straub for saying that DOMA reflects "the understanding of marriage…throughout our nation's history" and that "if this understanding is to be changed…it is for the American people to do so."
The procedural posture of the case is unique because, in the words of Clement, in February 2010, three months after Windsor filed suit in New York, "The Justice Department stops defending DOMA and starts attacking it."
BLAG voted 3-2 on party lines to step in and defend the statute.
The presence of the Obama administration on the side of Windsor and the entry of BLAG into the lawsuit prompted the Supreme Court to ask for opinions on two questions of jurisdiction from court-appointed amicus Vicki Jackson of Harvard Law School, who submitted a brief with Patricia Millett, Ruthanne Deutsch and Michael Small of Akin Gump Strauss Hauer & Feld.
On the first issue, Jackson concluded that BLAG lacks Article III standing "to defend the constitutionality of laws that do not concern its own specific prerogatives."
The interest here "in assuring that the law is enforced is a generalized one," Jackson states. "It is the Executive Branch, not Congress, that is obligated to 'take care' that laws are enforced."
"Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot assert alone," she states.
On the second question posed by the court, Jackson states the Obama administration's "agreement with the courts below (and with Windsor) deprives this Court of jurisdiction, because the United States suffers no injury sufficient to invoke Article III jurisdiction."
Ten amici have filed briefs backing BLAG in its defense of the law.