Thursday, March 28, 2013

Lack of Standing: How Liberal Politicians May Have Shot Themselves in the Foot on Same-Sex Marriage

Earlier this week the Supreme Court heard two different cases on same-sex marriage.  After seeing all the controversy surrounding these two cases, the main issue that we all want to know is whether or not the Supreme Court will rule that same-sex marriage is legal in all 50 states.  That's the bottom line.  In order to answer that question, the Supreme Court will have to decide for the first time in its history whether or not the Equal Protection Clause in the Constitution requires straight couples and same-sex couples to have the same fundamental right to marriage.  Either they do or they don't.  It's that simple.  As we discussed earlier, these two cases dealt with two different sides to the same coin: (i) state laws that discriminate against same-sex couples; and (ii) federal laws that do the same.  Both cases put the issue of same-sex marriage squarely before the Supreme Court to be decided on the merits.  It appeared, for a moment, that this years-long debate might have finally come to an end this week. There's just one small problem though: both of these cases might get tossed out on a technicality known as "standing."  And if that should happen it would truly be a tragic case of irony because liberal politicians -- the most vocal advocates for marriage equality -- are 100% responsible for creating this technicality in the first place.

How did this happen, you ask?  And what the heck is "standing?"  We'll get to that in a minute.

In 2008, Prop 8 was passed which banned same-sex marriage in the state of California.  Immediately a gay couple sued the state of California in federal court arguing that the new law discriminated against gay couples in violation of the Constitution.  What usually happens whenever an individual challenges the constitutionality of a state law is that the state will defend the law in court.  That didn't happen here. Instead, the then California Attorney General, Democrat Jerry Brown (now the Governor), took a principled stand against Prop 8 and refused to defend it in court.

Similarly, whenever the constitutionality of a federal law is challenged in court by a plaintiff, the federal government (represented by the Department of Justice) will defend the law.  That didn't happen here either.  On February 23, 2011, the head of the Department of Justice, U.S. Attorney General Eric Holder (Democrat), released the following statement about DOMA:
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases.

So you had a situation where the respective legislative bodies in both California and the federal government had passed laws that discriminated against same-sex couples, and both of the respective Attorneys General whose job it is to defend those laws in court refused to do so.  Which begs the following question: if the government doesn't defend its own laws in court then who can?  The answer: whoever has standing.

Which brings us back to the question of what the heck is standing.

Rather than bore you to death with long drawn out legal explanations of what standing is, its probably easiest
if we look at a few examples.  Let's say that I'm selling my house for $1 million dollars and you want to buy it.  We sign a contract putting this agreement in writing.  After we sign it, you give me the million bucks which I immediately put into my offshore bank account but then I change my mind and keep my house (and your million bucks!!!).  I've just "injured" you financially.  Accordingly, you and I both have "standing" to take our dispute to court because we're both directly involved with the injury at issue.  Now let's say that you tell your brother about what happened and he gets so mad that he decides to sue me too.  The court would toss his law suit against me out of court because he was not directly involved with the injury.  Only you were.  Therefore, you have standing but your brother does not.  Now let's say that I'm bummed out about this lawsuit and I tell my mom about it and she decides to be overprotective of me and asks the court if she can take my place as the defendant.  The court would, of course, deny her request because she was not directly involved with the injury.  I was.  I have standing but she doesn't.

You get the idea.

In the same-sex marriage cases, the plaintiffs are gay individuals who have been injured by a law that discriminates against their respective marriages.  There is no question that they have standing.  There is, however, a HUGE question as to whether standing exists for the defendants.  If the state Attorney General's Office of California had defended Prop 8, there would have been no question that it had standing to do so.  That's how its supposed to happen.  Likewise, if the Department of Justice had defended DOMA, there would have been no question that it had standing to do so.  In both of those scenarios, the Supreme Court would have checked the box marked "standing" and moved on to hear the merits of each case.

But that didn't happen here.

In the Prop 8 case, a group called (which was the group responsible for putting Prop 8 on the ballot in the first place) asked the court for permission to stand in the shoes of the State of California after California refused to defend the law.  In the DOMA case, the Republican Party in the House of Representatives asked the court for permission to stand in the shoes of the Department of Justice after Eric Holder announced that the Department would not defend DOMA.

As a result, the Supreme Court heard over 20 minutes of oral argument on the issue of standing alone before it even considered the merits of Prop 8.  Similarly in the DOMA case, the Supreme Court spent a significant amount of time on the issue of standing.  The Court even went so far as to have a separate lawyer come in and argue her amicus brief (a "friend of the court" brief filed by a person who has a dog in the fight) on the issue of standing.

In the Prop 8 case, the ProtectMarriage group argued that it had standing to defend the California state law because it organized the campaign to put the proposition on the ballot.  The plaintiffs -- and indeed many of the Justices -- didn't seem to buy that argument.  Instead, the Court seemed more persuaded by the argument that, at the end of the day, the people in the ProtectMarriage group are not elected state officials but are merely residents like everybody else in the state of California.  Therefore, they have no more standing to defend Prop 8 than any of California's 38 million residents.

In the DOMA case, the House Republicans argued that they had standing to defend DOMA by virtue of being Congressmen.  This argument did not go over too well with the Court which basically said that it would violate the separation of powers between the 3 branches of the federal government to allow Congress to do the job of the Executive Branch in defending laws in court.  That job belongs to the Executive Branch by way of the Department of Justice. 

Again, the irony here is that by taking a principled stand against laws that discriminate against same-sex couples, Democrats may have prevented the Supreme Court from being able to strike down these laws on the merits.  In other words, the Democrats may have shot themselves in the foot because if the Court can't find standing, then the Court will have to dismiss these cases on a technicality.  Stated differently, if the Democrats had held their noses and defended these laws in court when they were supposed to, then the Supreme Court would be able to skip right past this standing discussion and strike these laws down on the merits (assuming the Court is so inclined). Of course hindsight is always 20/20, but if it turns out that same-sex marriage supporters must miss out on their big day in court due to this standing technicality caused by liberal politicians, it will provide a valuable lesson going forward: sometimes you have to do what you don't want to do in the present in order to get where you want to be in the future.

  1. Should the Dems have defended Prop 8 and DOMA even though they disagreed with the spirit of these laws?
  2. Do you think the ProtectMarriage group has standing to defend Prop 8 on behalf of the State of California?
  3. Do you think that the House Republicans have standing to defend DOMA on behalf of the Executive Branch of the federal government?
  4. What does your gut tell you about these cases being tossed out due to lack of standing?
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