Gay marriage: How Supreme Court cases could end with a whimper

Sometimes huge cases at the US Supreme Court end in a whimper rather than a bang.

Despite the crescendo of anticipation surrounding the looming showdown over same-sex marriage at the high court this week, it is possible the justices could decide the controversial cases without ever reaching the core issue of whether Proposition 8 in California and the federal Defense of Marriage Act (DOMA) violate the rights of same-sex couples.

Before the justices can take up those fundamental questions, they must first agree that the parties before them have the necessary legal standing to argue the cases, and that the court, itself, has jurisdiction to decide them.

It is a unique feature of the litigation in the Prop. 8 and DOMA cases that the government officials who are charged with the responsibility of defending the constitutionality of challenged laws have opted in both cases not to do so.

In the DOMA case, President Obama and Attorney General Eric Holder decided to stop defending the federal statute in court after concluding that it was unconstitutional. But the administration agreed to continue enforcing DOMA until a definitive ruling in the courts. DOMA bars same-sex spouses from receiving more than 1,100 federal marriage benefits available to opposite-sex spouses.

Similarly, the governor and attorney general of California declined to defend the constitutionality of Proposition 8, the 2008 ballot initiative banning gay marriage in that state. Nonetheless, California officials continued to enforce the constitutional amendment by refusing to issue any new marriage licenses to same-sex couples until a final court ruling on the issue.

There is no question about the legal standing of same-sex couples to file lawsuits complaining that they are being treated as second-class citizens under DOMA and Proposition 8.

There is also no question about the legal standing of the president and attorney general to defend the constitutionality of DOMA in the courts, or the legal standing of the California governor and attorney general to defend Prop. 8 in the courts.

The question hanging over the DOMA and Prop. 8 cases is whether someone else can take up the defense of DOMA or Prop. 8 when government officials decline to do so.

Although it might seem little more than a legal technicality, the issue of who has standing to litigate in federal court is a significant matter. The Constitution limits the courts’ jurisdiction to actual “cases” or “controversies.”

US judges are not permitted to preside over debates or mere policy disputes. Instead, would-be litigants must demonstrate that they have a genuine stake in the dispute that can be redressed by the court.

On the other hand, if no one else can take up the defense of certain challenged measures, it would seem to afford government officials an opportunity to game the system to undermine duly-enacted laws with which they personally disagree.

In both cases, DOMA and Prop. 8, interested parties intervened to defend the measures.

In the DOMA case, a group of Republican leaders of the House of Representatives decided to defend the constitutionality of the 1996 federal marriage law, which passed 85 to 14 in the Senate and 342 to 67 in the House, and was signed by then-President Bill Clinton.

In the Proposition 8 case, organizers of the 2008 ballot initiative entered the case to argue in defense of the state constitutional amendment that passed 52 percent to 48 percent and was endorsed by seven million California voters.

The so-called “standing” question arising in both the DOMA and Prop. 8 cases is whether the parties that intervened in the litigation in place of government officials have an interest in the case sufficient enough to trigger standing under the high court’s precedents.

In 1987, the justices upheld an effort by New Jersey legislators to defend a law when executive branch officials in the state refused to do so. What is unclear in the context of DOMA is whether standing must be sought by the full Congress (both House and Senate) or just the House of Representatives, as in the DOMA case.

A second question raised by the justices themselves is whether the actions of the Obama administration in the DOMA case undermined the executive branch’s own legal standing in the case.  

That question relates to the fact that the Obama administration didn’t simply refuse to defend DOMA in court. Government lawyers presented arguments that mirrored those of the plaintiff – that DOMA should be struck down as unconstitutional. In essence, both sides of what is supposed to be an adversarial proceeding were advocating the same result.

That is not a “case” as required by the Constitution.

That’s where the House leadership comes in. Their lawyer presented the kind of argument that normally would be presented by the government – defending the constitutionality of the challenged statute. So the case was adversarial, but only if the House leadership’s participation is credited with the status of a full party to the dispute.

The Obama administration rejects this view. Justice Department lawyers insist that for purposes of establishing standing, the underlying “case” is a simple tax dispute between the United States and the plaintiff, Edith Windsor, who is seeking a $363,000 estate tax refund. Since the US government has still not cut a refund check for Windsor, the US still retains standing, government lawyers say.

As if this situation wasn’t complex enough, the high court has asked yet another lawyer, Harvard Law Professor Vicki Jackson, to argue the standing issue before the court from a perspective independent of any other parties. She maintains in her brief that neither the House Republican leadership nor the US government have standing to appeal the DOMA case.

If a majority of justices agree, it would mean that the court would lack the necessary jurisdiction to hear the appeal and decide whether DOMA is constitutional or not.

A similar “standing” issue arises in the Prop. 8 case, and many legal analysts say it is even thornier than in the DOMA case.

When California officials declined to defend the constitutionality of the ballot initiative, the trial judge allowed Prop. 8 organizers to defend the measure.

After the judge declared Prop. 8 unconstitutional, lawyers for the Prop. 8 organizers filed an appeal to the Ninth US Circuit Court of Appeals.

The appeals court questioned whether the Prop. 8 organizers had the necessary legal standing to appeal. The appeals judges cited a 1997 Supreme Court decision in which the court expressed “grave doubt” about whether proponents of a ballot initiative would have standing to defend its constitutionality.

The Ninth Circuit panel in the Prop. 8 case referred the issue to the California Supreme Court. That court ruled that when state officials refuse to defend a challenged ballot initiative, California law empowers the official proponents of a voter-approved initiative to stand in the shoes of government officials for purposes of defending the constitutionality of the initiative.

Opponents of Prop. 8 are urging the Supreme Court to reject the view of California’s high court and rule that the Prop. 8 organizers lack standing. If the high court agrees, the Ninth Circuit decision would be vacated and the case would end, with the justices bowing out of the controversy without ever addressing the broader constitutional issues.

The Prop. 8 case, Hollingsworth v. Perry (12-144), is set for oral argument on Tuesday morning. The DOMA case, US v. Windsor (12-307), will be heard Wednesday morning.

A decision is expected by late June.