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Wednesday, June 26, 2013

Supreme Court Overturns DOMA and Rules No Standing on Prop 8

In United States v. Windsor, the Court held that the Defense of Marriage Act is unconstitutional:
The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment. DOMA’s operation in practice confirms this purpose. When New York adopted a law to permit same-sex marriage, it sought to eliminate inequality; but DOMA frustrates that objective through a system-wide enactment with no identified connection to any particular area of federal law. DOMA writes inequality into the entire United States Code.
This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.

In  Hollingsworth v. Perry the Court held that the petitioners lacked standing to appeal from the district court's order.

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 was 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, was 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  For example in United States v. Richardson the Court held that a taxpayer could not challenge the unpublished CIA budget.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.

Today the Supreme Court held that the proponents do not have the legal right to defend the law in court and it sent the case back to the Ninth Circuit Court of Appeals with instructions to dismiss the case.

The decisions in both of these cases are being covered by every media outlet around the country and entire books could be written about each decision.  Rather than rehashing everything here, we recommend the great reporting done today by SCOTUSBlog:

Opinions recap: Giant Step for Gay Marriage - By Lyle Denniston
Detalis on Hollingsworth v. Perry: In Plain English
Details on United States v. Windsor: In Plain English

Read the Court's Opinions Here:
Hollingsworth v. Perry
United States v. Windsor