Social Icons

google plusfacebooklinkedintwitterinstagramrss feedemail

Monday, April 15, 2013

Are You Sure You're the Right Person for the Job? - Standing in the Gay Marriage Cases

Photo Credit: Tim Evanson
This is the second in a series of articles that explore the Perry and Windsor gay marriage cases. This article focuses the proponents' basic arguments. Others will explore deeper substantive issues and the unique position of Justice Kennedy, who is likely the deciding vote and who is also the author of the two most important cases dealing with gay rights; Romer v. Evans and Laurence v. Texas.

Prop 8 – Hollingsworth v. Perry:  Can supporters of a law appeal if the government declines to do so?

Standing is basically the right to bring a case to the Court.  In our legal system, one can only bring a case if they have suffered an individualized harm and a favorable decision by the Court would be likely to remedy that harm.  While there is no question that the plaintiffs, two same-sex couples seeking marriage licenses, were harmed by the legislation, the major standing question before the court, since as the State of California declined to appeal, is whether or not the current petitioners, as supporters of the law, have standing to bring this challenge.

The California Supreme Court held that these petitioners have standing, however as the challenge presents a federal question, the Supreme Court is not bound to respect that.  As established in Article III of the US Constitution; there must be a real injury for a party to have standing.  Standing that generalized, rather than based on an injury specific to the petitioner has generally been held to be insufficient.  For example in United States v. Richardson the Court held that a taxpayer could not challenge the unpublished CIA budget.  Other examples include City of Los Angeles v. Lyons and Allen v. Wright.

The only exception so far established is from Flast v. Cohen, which allowed for the challenging of of government expenditure that supposedly violated the establishment clause.  The reasoning behind this decision was that, if not for the exception, these kinds of violations could never be challenged.  Not having a challenger, however, has not always been a sufficient reason to allow standing, See Massachusetts v. Mellon, for example.  Also, rather than expanding the exception in Flast, the court has consistently contracted it.  A later case found no standing to challenge governmental grants of property to religious organizations.

The petitioners in this case have suffered an ideological harm as well as the potential loss of the lobbying money and effort.  It would be surprising if the court found that a lobbyist not getting his way would have standing to sue based on his expenditure.  At the same time, if these petitioners have no right to sue, it is likely that no one does.  While that mattered in Flast, it did not in Mellon and having no one able to sue is hardly dispositive of a grant of standing.  It is also worth noting that in oral arguments, about half of the time was spent on standing and Justice Kennedy seemed especially troubled.

United States v. Windsor: Can members of congress petition for review of DOMA?

            DOMA defines the term “marriage” under federal law as a “legal union between one man and one woman.” Functionally, it overrides the full faith and credit clause with regard to same-sex marriage and also prevents same-sex couples from enjoying the same federal tax advantages as opposite-sex couples. 

Aside from the constitutional problems, it has created issues with emergency care, inheritance, and taxes.  Like with Al Capone, it was the tax issue that caused the problems and it was the inheritance tax that that brought Edith Windsor to court.

           In this case, like in Perry, the Obama Administration has refused to defend the act and has declared that it believes it unconstitutional.  The “House Bipartisan Legal Advisory Group" voted (ironically) along party lines, 3-2 to intervene and defend DOMA.  There has never been a case that has addressed this exact issue, but in Goldwater v. Carter, the court dismissed the issue of whether Congress had a role in repudiating treaties as a non-justiciable political question.  That is at least some precedent for the court not wanting to decide cases where Congress is suing in opposition to the President, but the value as precedent is limited more to a historical norm than to law.

           It is very possible that these cases could both be dismissed for a lack of standing.  The court used to have a policy of not deciding on Constitutional issues if there was a non-constitutional means of disposing of the case.  This was per Justice Brandeis’ dissenting opinion in Ashwander v. Tennessee Valley Authority.  Fifty years ago, dismissal based on standing would have been more likely than not, however, the court has been less quick to dismiss in recent years.  Still, this may be a convenient way to dispose of controversial cases.  The court could do this and then wait a few more years before deciding on these important issues.

You can listen to the oral arguments here:
Hollingsworth v. Perry & United States v. Windsor