The U.S. Supreme Court, in a widely anticipated move, has agreed to hear appeals in two important marriage equality cases. The first is UNITED STATES V. WINDSOR, the New York case challenging section 3 of the Defense of Marriage Act. And the order granting the appeal is very interesting, for several reasons:
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.
Okay, this is kind of entering the twilight zone. When the Obama administration announced that it was no longer going to defend the constitutionality of DOMA, the House then hired the Bipartisan Legal Advisory Group to defend the law in court. So the court wants to hear argument on two questions here: Whether BLAG has standing to defend the law and whether the executive branch’s agreement with the lower court takes away the Supreme Court’s jurisdiction to hear the case. It’s that second question that is really a huge can of worms.
The potential argument here is that if BLAG has no legal standing to defend the law and the executive branch agrees with the ruling of the 2nd Circuit Court of Appeals, then no one is injured and no one has standing to defend the law. But what does that do to the lower court rulings? Does it vacate those rulings and therefore leave DOMA in force? Or does it leave those rulings in place? Either result is bizarre. Even more bizarre is that such a ruling would make it impossible to challenge DOMA unless Obama is replaced in four years by a president who wants to defend the law.
If it leaves DOMA in force, that would perversely mean that the plaintiffs can’t challenge the constitutionality of the law because the government refuses to defend the law as constitutional. But if that leaves the lower court rulings in place, then DOMA is enforceable in some circuits and not in others. Gay couples in the 2nd Circuit would get federal marriage benefits because the appeals court struck down the law, while gay couples in a circuit where DOMA was upheld would not. And that would raise obvious equal protection problems.
So what the hell is going on here? My buddy Dan, who teaches con law, thinks that this may all be due to intrigue inside the court. You’ve probably got four clear votes to overturn DOMA and four votes to uphold it (no such vote has been taken yet, of course, but the justices almost certainly know how each one is going to vote if the court rules on the merits of this case. Except one: Anthony Kennedy. They don’t know where he’s going to come down, so one or both sides might well be putting these questions in there so they can punt the case on procedural grounds if it looks like Kennedy isn’t going to side with them after oral argument is heard. Oh what tangled webs they weave…
The other case they’re going to hear is Hollingsworth v Perry, which is the Prop 8 case out of California. Here’s the order on that one:
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.
This was a similar situation to the one above, in that the government of California refused to defend the constitutionality of the law banning same-sex marriage. The California state courts then allowed the group that proposed the referendum to intervene as defendants to advocate for the constitutionality of the law. The question of whether that group has legal standing is fairly predictable, but I have no idea how the court might rule on that question.
As I’ve said before, I think the court’s entire standing doctrine is contrary to the Constitution and entirely artificial and invalid. But standing questions almost always involve plaintiffs, not defendants. In these cases, where the government decides not to defend a law, someone has to represent that law in court and argue in its favor. I see no reason why standing should not be given to the defendants in both of these cases, even under the current standing doctrine that I oppose.
But that jurisdiction question in the DOMA case? Utterly mystifying to me.