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Marriage cases: History in the high court, part 1
by Lisa Keen, Keen News Service
2013-03-04

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Part 1: Standing in the way

How procedural questions in the two big marriage cases this month could preclude major rulings —and what that would mean

The following is the first in a four-part series to prepare readers for what to expect March 26 and 27 when the U.S. Supreme Court takes up the marriage equality cases.

It is hard to overstate the potential impact of the upcoming U.S. Supreme Court cases concerning marriage for same-sex couples. The primary questions posed by the two cases —Hollingsworth v. Perry involving Proposition 8 and U.S. v. Windsor involving the Defense of Marriage Act— could lead to rulings that dramatically advance the equality of LGBT people under the law.

But the Supreme Court may end up issuing no ruling in either case.

How is that possible?

It's possible because the Supreme Court can choose to consider whatever questions it wants to on a case, regardless of what question a party to the litigation has posed in bringing the case to the court.

When the Yes on 8 coalition, led by Dennis Hollingsworth and other conservative activists in California, appealed a lower court ruling striking down Proposition 8, it asked the Supreme Court to decide, "Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman."

When Ted Olson and David Boies filed their brief, on behalf of the two plaintiff same-sex couples, in response to that appeal, they suggested the court decide "Whether it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a State to use the ballot-initiative process to extinguish the state constitutional right of gay men and lesbians to marry a person of the same sex."

When U.S. Solicitor General Donald Verrilli filed the government's petition in the Second Circuit U.S. Court of Appeals case U.S. v. Windsor, challenging the Defense of Marriage Act (DOMA), he asked the court to decide "Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State."

The Bipartisan Legal Advisory Group's brief in response to that also posed the equal protection question but added two questions regarding legal standing —one concerning plaintiff Edith Windsor's marriage certificate (obtained in Canada and not recognized in New York when her spouse Thea Spyer died in 2009), and another concerning the legal standing of the executive branch (via the solicitor general) to appeal a decision that "it requested" from the Second Circuit.

But when the U.S. Supreme Court announced last December that it would review the two cases, it added questions to both concerning legal standing.

In the Proposition 8 case, it asked whether Yes on 8 has standing under Article III, Section 2 of the constitution.

In the DOMA case, it asked whether the executive branch's agreement with the Second Circuit precluded the Supreme Court from ruling in the DOMA case and whether BLAG has standing. And in the DOMA case, the Supreme Court "invited" Harvard law professor Vicki Jackson to submit a brief and oral argument in support of the notion that the Supreme Court does not have jurisdiction and BLAG does not have standing in the DOMA case.

Case, controversy, and injury

Standing is another way of saying "right to sue." To have the right to sue, a party must have suffered or be threatened with a discernible injury, the lawsuit must be directed at the cause of that injury, and the controversy must be one that a court decision could remedy.

Section 2 of Article III gives the courts jurisdiction to review "all cases…arising under" the U.S. Constitution and to "controversies to which the United States shall be a party."

The question about legal standing for the Yes on 8 coalition was first raised by the plaintiff couples' legal team in the courts below, and in their brief to the Supreme Court, Olson and Boies argued that Yes on 8 does not have standing and that its appeal should be dismissed. As their brief argues, Yes on 8 groups have "never once suggested that permitting same-sex couples to marry could harm them —or anyone else— personally."

"And [Yes on 8 proponents], who are not public officials, do not have a close relationship with the State" that would otherwise justify standing.

Of course, the Ninth Circuit U.S. Court of Appeals panel, which struck down Proposition 8, accepted a California Supreme Court ruling that Yes on 8 did have legal standing to appeal, even though California state officials chose not to. The Ninth Circuit panel unanimously concluded it was "bound" by the unanimous state supreme court determination that California law authorized Yes on 8 to have standing "to assert the people's and hence the state's interest in the validity of the measure and to appeal a judgment invalidating the measure." The Ninth Circuit panel, which seemed troubled that denying Yes on 8 standing would amount to giving state officials veto power over voter-approved initiatives, said Yes on 8 did not "need not show that they would suffer any personal injury from the invalidation of Proposition 8" because "the State would suffer an injury…."

In the DOMA case, BLAG argues —much as Yes on 8 does — that, because the executive branch did not defend DOMA in court, it should not have the right to petition the Supreme Court for review of the lower court decision that found the law unconstitutional.

BLAG lead attorney Paul Clement and his team assert that the House has a "concrete interest in ensuring that its passage of DOMA is not completely nullified" and that it would suffer a "distinct injury" that a Supreme Court decision could redress. (BLAG argues the Supreme Court should dismiss the solicitor general's petition and, instead, grant BLAG's petition to appeal the Second Circuit decision.)

Professor Jackson's brief argues that BLAG has neither suffered nor been threatened with "injury," that one chamber of Congress cannot assert that Congress has suffered injury, and that BLAG "is not the House" but rather an advisory group to the House.

"It is the Executive Branch, not Congress, that is obligated to 'take Care' that laws are enforced," said Jackson's brief. "Moreover, any injury that might arise from nondefense of a law would be to the whole Congress, which one House cannot alone assert."

Jackson's brief also argues that the Supreme Court does not have jurisdiction to consider the Second Circuit decision given that the executive branch agrees with that decision, so, there is no "case or controversy" and no "injury."

The U.S., said Jackson, agrees that DOMA is unconstitutional and that Windsor deserves a refund of the more than $300,000 she had to pay in estates taxes following her spouse's death. (The surviving spouse of a heterosexual marriage is not required to pay taxes on joint property. But because Section 3 of DOMA forbids federal agencies from recognizing marriages between same-sex spouses, the Internal Revenue Service did not grant Windsor the exemption.)

"The United States thus offers no concrete injury to its legal interests from that judgment sufficient to invoke the jurisdiction of this Court," said Jackson.

So why did the U.S. appeal?

One might wonder: If the U.S. agreed with the Second Circuit decision —that DOMA is unconstitutional— then why did the Solicitor General file a petition with the Supreme Court, seeking review of the decision?

The short answer is because the executive branch was obliged to continue to enforce DOMA, including the tax bite it inflicted on Windsor. But it's also true that the Justice Department wanted the Supreme Court to weigh in on DOMA to avoid the havoc it would result from having one circuit court strike the law down while others had not yet done so.

"It would create havoc if there is not a definitive ruling on its constitutionality nationally," said noted legal scholar Nan Hunter.

Jackson says the U.S. was "only nominally a defendant" in the courts below and that its interest in "obtaining a precedent from a higher court" is "insufficient."

As for the likelihood that the justices will agree that the Supreme Court itself has no jurisdiction, well, that has political implications.

Veteran Supreme Court reporter Linda Greenhouse, in a New York Times blog post, put it this way: She said it would amount "to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court."

No standing, no step forward?

So what if the court finds the petitioner for either case has no legal standing, or that the court itself has no jurisdiction to decide the DOMA case?

If a petitioner does not have standing, the Supreme Court will not decide the underlying constitutional question. In many cases, that means the lower court decision stands, but it applies only to the lower court's jurisdiction. For instance, if a Second Circuit decision is left intact, it benefits only people living in the Second Circuit states of New York, Connecticut, and Vermont.

With these two cases, there are a multitude of things the court might do if it finds no standing and a staggering number of ways experts have thought of for how both cases might play out.

For instance, one law professor and former advisor to the Department of Justice under Presidents Clinton and Bush, Marty Lederman, thinks lack of standing in the Proposition 8 case could mean as little as the grant of marriage licenses to the two plaintiff couples only. That's what Yes on 8 proponents argue, too.

But others, including UCLA law professor Erwin Chermerinsky say no standing in the Prop 8 case means California officials would have to issue marriage licenses to same-sex couples anywhere in the state. And many experts believe there could be additional litigation over that matter, too.

A finding of lack of standing and/or lack of Supreme Court jurisdiction on the DOMA case is even more complicated. First, as Hunter points out, allowing the Second Circuit decision to stand would leave a judicial system in which same-sex couples in three states could receive federal benefits of marriage while same-sex couples in the other states could not. One of the primary responsibilities of the Supreme Court is to address such inconsistencies among the circuits.

So, if the Supreme Court finds that BLAG lacks standing and/or the Supreme Court lacks jurisdiction in the Windsor case, it might choose to deliberate over the law through consideration of another of the DOMA petitions pending before the court but those cases pose much the same procedural questions.

What that might lead to then, says Jon Davidson, legal director for Lambda Legal, is years more of lawsuits.

"It would mean that DOMA would be unenforceable in some instances but not others for at least some period of time, and that there would need to be new suit after suit after suit until a married same-sex couple actually lost and appealed before the higher courts could rule on the issue," said Davidson.

But another alternative scenario, said both Davidson and Chermerinsky, is that the Obama administration could —if the Supreme Court decides not to rule in Windsor— is issue an executive order saying it will stop enforcing DOMA Section 4.

"But I suspect that some of the justices would not like creating a situation where a President can arrange to stop enforcing a law if the President's administration ceases to defend it and a district court finds the law unconstitutional," said Davidson.

Meanwhile, on Monday (March 4), the Supreme Court issued an order granting a request from all parties to the DOMA case and added 50 minutes to the usual 60-minute argument time for the March 27 case, specifically to address the questions of standing.

© copyright 2013 by Keen News Service. All rights reserved.


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