Supreme Court Agrees to Review Same-Sex Marriage Cases - But Questions Whether the Laws' Supporters Have Standing

Big news today on same-sex marriage.

The Supreme Court granted certiorari in United States v. Windsor, one of the cases in which a United States Court of Appeals struck down the federal Defense of Marriage Act. The Court also agreed to hear Hollingsworth  v. Perry, the Prop 8 case. The docket entry granting cert in these cases may be accessed here.

In both cases the Court also asked the parties to brief a jurisdictional issue. In Windsor the order of the Supreme Court states:

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UNITED STATES V. WINDSOR, EDITH S., ET AL. The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

In Hollingsworth the Supreme Court stated:

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HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL. The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

The question of same-sex marriage is one of the most important civil rights issues of our time - but the jurisdictional question raised by the Court may prevent a decision at this time. The question is: If the executive branch of a state or the federal government agrees with a lower court that a law is unconstitutional, does that deprive the appellate courts of jurisdiction to review the lower court's decision? Do private citizens or legislators who supported the law have standing to defend the constitutionality of the law in the appellate courts? If the appellate courts can't rule on the constitutionality of such laws, it  would place enormous power in the executive branch to simply ignore laws that it disagrees with once a lower court has ruled against the law.

Here are the facts of the Windsor case. Edith Schlain Windsor was legally married to another woman in the State of New York. Because the federal Defense of Marriage Act requires the federal government not to recognize same-sex marriages, Edith had to pay $360,000 in federal estate tax that she would not have had to pay if her spouse had been male. She sued the United States in federal court seeking to have DOMA declared unconstitutional. President Obama directed the government to comply with DOMA until the matter is settled in the courts, but he also decided that he could not in good conscience defend the constitutionality of the law.  Accordingly, lawyers for the House of Representatives (the Bipartisan Legal Advisory Group or BLAG) were added to the case both as defendants and as lawyers defending the law. The Second Circuit Court of Appeals ended up ruling that DOMA is unconstitutional.

The facts in Hollingsworth were different, but the result was similar. After the California Supreme Court ruled that same-sex couples had a right to marry under the California Constitution, the people of the State of California adopted Proposition 8, which amended the state constitution to provide that marriage is restricted to one man and one woman. Governor Arnold Schwarzenegger and Attorney General Jerry Brown came to the same conclusion that President Obama did; they thought that Prop 8 was unconstitutional and they chose not to defend the measure in court. The California Supreme Court ruled that Prop 8's supporters had standing to support the law in court, and the Ninth Circuit ruled that Prop 8 is unconstitutional.

In questioning whether the Supreme Court has jurisdiction in these two cases, I wonder whether the justices are worried that each of these cases resembles a request  for an "advisory opinion."  It is well-settled that the federal courts do not have the power to render advisory opinions about the constitutionality of laws. The Constitution gives the federal courts jurisdiction only to decide "cases" and "controversies" - that is, cases where there are two opposing parties, not hypothetical questions or situations where there is no real actual dispute.

The requirement that the parties must have "standing" is a related concept. A party has standing if it stands to lose something if the court rules against it. To have standing a party must have suffered a legal injury - that is, its legal rights will be affected if it loses the case. If the Court finds that neither BLAG nor the Prop 8 supporters have standing it should dismiss the appeal for lack of jurisdiction.

In my opinion, neither BLAG nor the Prop 8 supporters have "standing" on their own. Neither as individuals nor as organizations will they be harmed if same-sex marriage is allowed. In fact, no-one will be harmed if gays and lesbians are allowed to marry.  The only party who has standing to support Prop 8 is the State of California, and the only party who has standing to defend DOMA is the United States of America.

But that doesn't mean that the Supreme Court should dismiss these cases for lack of standing or lack of jurisdiction. In the Prop 8 case the Ninth Circuit Court of Appeals ruled that the supporters of Prop 8 were in fact representing the State of California. The Ninth Circuit stated:

All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.

The jurisdictional and standing issues are important but not insurmountable. Both BLAG and the supporters of Prop 8 are adversaries to the same-sex couples who want to marry, and they are representing the governments whose laws are being challenged. They were allowed to take over representation of the government's legal rights in these cases precisely because they would be more effective representatives in defending the constitutionality of these laws.

The purpose of the "case or controversy" requirement and the law of standing is to ensure the integrity of the adversary process. That purpose is served - and served well - by allowing BLAG and the Prop 8 supporters to defend these laws on appeal. The Supreme Court should not take a formalistic approach to deciding the jurisdictional issues in these cases. Instead it should follow a realistic line of analysis and find that it has jurisdiction to hear these two cases.

Wilson Huhn teaches constitutional law at The University of Akron.