Attorney, gay-rights advocate and former Clinton advisor Richard Socarides, in his recent post at The New Yorker, insightfully explores how issues surrounding standing to sue might enable the Supreme Court to avoid having to rule on whether the Constitution requires government recognition of same-sex marriages. Put simply, mere offense does not provide sufficient grounds for one to challenge the constitutionality of a policy; one must demonstrate that the policy has harmed them in some tangible way that can be remedied by a favorable judicial ruling. Standing acts like the beefy guy with the headset and the clipboard outside an exclusive dance club; if you can’t demonstrate that you deserve to be inside, your night ends abruptly.
What makes standing complicated here is that the losing parties in the lower courts, California and the Obama administration, side with the marriage-equality advocates and have declined to defend the enactments being attacked (Proposition 8 and the Defense of Marriage Act (DOMA), respectively). To avoid a scenario in which laws are invalidated by default, which would have broad ramifications and should frighten anyone who can envision a similar fate befalling a favored statute (for progressives, think about a Republican president whose administration refused to defend the Affordable Care Act in court), other actors have been allowed to defend the policies in court. In the California litigation, Hollingsworth v. Perry, supporters of Proposition 8 have been allowed to represent the challenged ballot initiative; in the DOMA litigation, Windsor v. U.S., a group of Republican leaders in the House of Representatives (the Bipartisan Legal Advisory Group, or BLAG) has been defending the statute.
But can either party persuasively claim to have standing? In the California litigation, the trial judge, Vaughn Walker, found that the witnesses speaking in favor of Proposition 8 were unable to advance any plausible way in which allowing gay couples to wed harmed heterosexuals. This determination would seem to offer the Supreme Court an opportunity to dismiss Hollingsworth on standing grounds. In Windsor, the question is whether a group of legislators has standing to defend an act of Congress, and more specifically, to defend federal law in response to the executive branch’s unwillingness to do so. Law professor Matthew Hall argues that precedent rejects both of these claims. Congress, according to Hall, lacks power to assert the national government’s interest in litigation unless authorized to do so by statute, and no statutory authorization to defend DOMA, or federal statutes in general, exists. And legislative committees may not assert the interests of the House in litigation unless the House explicitly authorizes it. (Earlier this year, the House passed a resolution to provide this authorization, but Hall argues that this fact is irrelevant because at the time BLAG petitioned the Court, it did not have authorization.) Needless to say, the legislators will be unable to assert any personal injury from the repeal of DOMA. So the Court in Windsor, as in Hollingsworth, has an escape hatch should it desire to use it.
For proponents of marriage equality, a victory resulting from a denial of standing would reinforce the Hollingsworth trial court’s rejection of the idea that expanding marriage rights to same-sex couples would damage either the institution of marriage or any concrete interest of heterosexuals. But if recent polls are any guide, this idea is already increasingly being rejected by the American people, and even if the prospects for legislative reversal of DOMA are slim in this sclerotic Congress, the trend toward marriage equality at the state level might continue.
Winning by default has its drawbacks, though. In the Proposition 8 case, thousands of California couples would have their right to marry restored, but there would be no effect outside California. In Windsor, the problem is that DOMA would become unconstitutional in the Third Circuit but nowhere else, thereby producing a logistical nightmare in which the federal government would have to develop two sets of laws governing a broad array of marriage-related benefits, one for the Third Circuit and one for everyone else. Perhaps most important, like winning a game by forfeit because the opposition used an ineligible player, a victory through denial of standing would deny gay rights advocates the opportunity to see their arguments beat their opposition’s arguments, with the whole world watching.
Ultimately, I would be surprised to see the Court go the standing route. Denying standing to Proposition 8 backers and BLAG would amount to holding that no party could ever establish eligibility to defend traditional marriage in court, and I don’t think that the Court is looking to head in that direction. Moreover, future challenges to DOMA are unlikely to feature fact patterns or background political conditions differing appreciably from the status quo; as a result, a future Court would be confronting the Windsor scenario all over again. If Justice Kennedy is concerned that a ruling against DOMA and Proposition would be premature and might result in backlash, he can take his cues from the growing numbers of conservatives who have endorsed marriage equality. (Justice Ginsburg might feel similarly, based on lessons drawn from the reaction to Roe v. Wade.) And law professor Michael Klarman, who has written at length about the role Brown v. Board of Education played in polarizing white Southern public opinion and generating racial backlash, rejects the idea that a Supreme Court ruling in favor of marriage equality would similarly cause short-term harm to the gay-rights cause. If there is minimal risk of backlash, there is minimal benefit to passing on the opportunity to decide a case where you’ve got the votes on your side. So while the escape hatch remains available, I expect that if there is a majority on the Court that favors marriage equality, it will leave that route unused.