The Supreme Court, Prop 8, and DOMA: The Standing Question

What is standing?

To say that standing is a preliminary get-through-the-door requirement does not minimize its importance: standing is a constitutional question based on Article III of the Constitution that limits federal courts to only hearing live cases and controversies. A "live" controversy is a real case, a specific disagreement between two parties than can be resolved by a court deciding between them. Therefore, both parties have to be the correct parties before the court to resolve the dispute.

In the federal courts, having standing usually means that you are directly affected, impacted, or injured by the underlying event. Take the roofing example: If you hire me to fix your roof and I refuse to, you are clearly the injured party. When I lose at trial, I'm adversely affected by an adverse decision, so I appeal. And, so on. But, that doesn't necessarily mean that the only question is whether the Prop 8 proponents and House Republicans were directly harmed by some adverse lower court decisions. The question may also be whether these secondary parties are the right groups to step into the shoes of the actual injured party, i.e., the state — California and the federal government, respectively.

PROP 8, Hollingsworth v. Perry

 The question: Can initiative proponents step into the shoes of the state to defend the law they wrote?

The Supreme Court wants the parties in the Prop 8 case to brief this question again, even though the Ninth Circuit addressed it before. The Ninth Circuit said that it is clear that the State of California was affected by Judge Vaughn Walker's initial decision declaring Prop 8 unconstitutional: the state had to start issuing marriage licenses to gay couples. But, when the state welcomed the change and refused to challenge the order, the group that wrote Prop 8 stepped into the state's shoes. The Ninth Circuit then needed state authorization to allow that to happen, authorization that it eventually got from a favorable California Supreme Court decision.

Notice that proponents' standing didn't depend on them being directly injured or harmed by the ruling, or that somehow their lives were made worse by California allowing gays to marry. Standing to appeal depended on California being injured or affected and a state law that allowed initiative proponents to take up the mantle of the state's standing.

That makes some theoretical sense, but it appears to contradict a 1997 Supreme Court decision in Arizonans for Official English v. Arizona, where the Court expressed "grave doubts" that initiative proponents could ever have the right to pursue an appeal to defend their initiative when the state refuses to. The Court said that proponents had to show some "direct stake" in the controversy.

The stakes: What could happen if the Supreme Court finds no standing?

If the Court finds no standing to appeal, then there never was standing to appeal; ProtectMarriage could never have taken the case to the Ninth Circuit. So, the Ninth Circuit's decision would be wiped out, as if it never existed. On the one hand, that would deprive us of some important analysis, some favorable conclusions of law, and some helpful persuasive precedent at the appellate level. On the other hand, it would reinstate the broader district court decision that declared unconstitutional all bans on the freedom to marry. Notably, there has been some question as to whether even that case applies to more than just the few plaintiffs in the case; but, that's more of a hiccup than a barrier and not worth a discussion at this time. Suffice to say, if the original Perry only applied to two couples in two California counties, the plaintiffs could seek to extend the ruling to the entire state via the state courts

DOMA, Windsor v. United States:

The question: Can the House Republican majority appeal a lower Court decision where the Administration won?

The Obama Administration won at the Second Circuit and winners generally can't appeal, so if the House Republicans are not properly part of the case, there is no adverse party — or, loser — to appeal the Windsor case to the Supreme Court. So, House Republican standing is essential for continuing the Windsor case at the Supreme Court.

The duly elected leadership of part of the legislative branch of Congress is different than a random collection of individuals who helped write and propose a state ballot initiative. But that doesn't mean that the House can willy nilly step into any case it wants without authorization. There ostensibly still needs to be some direct injury and some statutory or traditional rule that allows the legislative leadership to step in where the Executive Branch normally would be.

The stakes: What could happen if the Supreme Court finds no standing?

Winners can't appeal, so if the House Republicans are not properly in the shoes of the Obama Administration, there is no defender of the law, the case is over and the Second Circuit decision stands. That would most likely solve Ms. Windsor's $350,000 discriminatory tax problem, but it would mean that DOMA is the law in some parts of the country but not others. 


Most of the speculation about the Supreme Court's decision to consider standing in both the Prop 8 and DOMA cases centers around the idea of an "out," an easy escape clause in case the Justices do not feel the Court is ready to make a statement on the underlying substantive matter. That's entirely possible. The Justices of the Supreme Court have long tried to make as narrow rulings as possible, both as a matter of strategy and as part of a tradition of judicial humility: only decide as much as necessary to decide the case before you, and no more.

The strategy could work for both sides of the political divide. If the more liberal Justices think that they can't get a fifth vote, they would rather short circuit the case through the standing issue than risk a substantive decision that sets gay rights back a generation. If the more conservative Justices feel Justice Kennedy is jumping ship, they may try to cut off progress before it starts. Standing provides a convenient short cut that could preserve a positive lower court decision and yet keep the meddling, highly politically-charged Supreme Court out of the controversy.

But standing is not some tool of a avoidance. Making a bad standing ruling just to avoid having to decide a controversial issue is not behavior we have come to expect from the Supreme Court of the United States. The Court might very well have substantive concerns about the standing issues. After all, the Ninth Circuit's standing ruling appears to contradict the spirit, and perhaps the letter, of Arizonans. And, there has hardly been an extensive substantive briefing of the right of the House Republicans to step into the shoes of the Obama Administration. The motion practice below may not have been cursory, but it was decided in just a few sentences. 

Under the principles of Arizonans, ProtectMarriage never had standing. But, under the principles of Karcher v. May, a similar case involving state legislative leadership taking the place of a state executive branch, and other cases involving the federal government, House Republicans likely have standing to pursue the Windsor appeal. Any other decision, especially in Windsor, would lead to absurd results.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.



  1. AllBeefPatty says

    I have said this all along….I dare anyone to tell a returning soldier that he does not have the right to get married,

    The culture war is over with and you can thank President Obama.

  2. Lawyer says

    Ari, you kind of fudged the standing question in _Windsor._ The cert petition that was granted was the government’s, not BLAG’s. Your categorical statement that “winners can’t appeal” is inconsistent with SCOTUS’ grant of the government’s cert petition, and with the Court’s ordering the parties to brief whether the government (in addition to BLAG) had standing. Precedent actually suggests that the government did have standing to appeal, even though they won. See INS v. Chadha, 462 U.S. 919 (1983)(“When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal . . . . The agency’s status as an aggrieved party . . . is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.”).

  3. mikenola says


    You mention that Karcher v. May is a similar case, but you don’t address that in Karcher, Karcher and Orechio, as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, respectively, sought and obtained permission to intervene as defendants on behalf of the legislature.

    that changes the complexion of that cases importance in relation to BLAG deciding for itself to join & defend in Windsor v. United States.

    any case against the United States is the province of the Justice Department, unless an individual office, department or specific person is also filed against. The “other” then gains standing for the proceeding because they are attached by the suit.

    In this case that did not happen and only Justice had standing to defend. BLAG pried it’s way into the case, it was not attached via the suit.

    This action of forcing its way in alters the standing question significantly from the Prop 8 case, where the California Courts gave the proponents of 8 the standing to defend at the 9th circuit.

    That does not mean they actually have Article III standing, just that the 9th wanted to get guidance from the State on the issue. The state made an expedient, but slow, decision that giving standing in this one case would serve justice and the law.

    Obviously none of us know how SCOTUS will rule on this issue, if at all. It really is a backdoor exit for them in either case.

    As you rightly point out, taking that exit will limit the scope of decisions in very narrow ways.

    If they take that exit, in either or both cases, it will be very interesting to read their decisions. The logic cannot be the same in both, no matter how big a pretzel they twist it into.

    In Prop 8 that exit would have to be predicated on the idea that just because a state creates an expedience, it does not create automatic Article III standing for SCOTUS.

    In DOMA, they would have to decide that BLAG can, at will, decide to override Justice, which is the Administration not Congress, on which cases they take. That is clearly not a reality of the Constitution. The separation of powers doctrine is very clear who does what, and that forcing your way in is overreaching.

    Personally I am hoping/believing that Kennedy will vote with the good guys.

    But I am curious about the use of the exit.

    If the 4 on the right wing try and opt for it, they really cannot force the court to take it. The same for the 4 on the left wing.

    Everyone expects that Kennedy will be the swing vote, and that applies here too. It will be a major beacon if Kennedy decides to reject the standing issue to actually bring the cases to the full court.

    We will hopefully have an answer soon, and it can be seen as encouraging that SCOTUS just allowed parallel tracks to be heard the Hawaii & Nevada cases.

  4. MikeH says

    @Ari… IANAL, but it would seem to me the logical thing would to allow standing in the Prop 8 case since the CA Supremes said so – and who is more of an expert in State Law than that States Supreme Court. I do understand this is not a State case now, but a Federal Case – however one would think in matters of standing for what was previously a State issue, SCOTUS would defer to that ruling, just as the 9th Circuit did.

    Regarding DOMA it seems to me that the House would not have standing. The Senate didn’t join them in their decision and it is the Executive’s responsibility.

    That said, I would hope SCOTUS would grant review of both cases – but I think finding that a committee in the House acting alone, without the concurrence of the Senate would have standing is definitely a reach and violates the separation of powers doctrine. They are trying to play in the executive’s sandbox.

  5. Stefan says

    If standing is denied in Hollingsworth v Perry, same-sex marriage would still resume in the entire state as a result of Olsen and Boise naming the state of California as a party in the case. They anticipated the issue of standing may come up so they took that measure to ensure it wouldn’t be a problem.

  6. Kevin says

    I think you fudged the standing issue too. Judge Consuelo B. Marshall is holding two hearings on that issue on January 28 and BLAG will be appearing by telephone.
    Cooper-Harris v. USA, is a military benefits case dealing with parts of DADT that were not repealed, and Aranas v. Napolitano, is a DOMA immigration case.
    Judge Marshall expressly asked the parties to brief and argue jurisdictional and standing questions.
    The standing issue is properly before the trial court that should be resolved before the trial court can even reach the merits of BLAG’s defenses.
    Both cases involve DOMA and statutes aside from Section 3 of DOMA. The issues relate to the military benefit statutes and immigration laws.
    In fact, even if Windsor is resolved on the merits, at the Supreme Court won’t answer the remaining questions in these two cases.
    So before the Supreme Court rules America might already know the position of trial courts on the matter. These opinions are not to be ignored.

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