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12/15/2012

Standing and Gay Marriage: A Quick Summary
Michael Ramsey

In two earlier posts, I argued that neither of the Supreme Court’s same-sex marriage cases, United States v. Windsor and Hollingsworth v. Perry, should be decided on the merits (see here and here).  The only remaining defendants in these cases lack standing to appear as parties because they lack a concrete and personalized legal interest in the outcome.  Their interests are instead political and ideological.

That may seem counterintuitive because standing is usually an issue for plaintiffs, not defendants.  Indeed, the doctrine is sometimes stated as a requirement for a plaintiff to bring a case.  But here it’s important to focus on the textual basis of standing: Article III, Section 2’s provision that “The judicial Power shall extend” to “Cases” and “Controversies.”  Under the standing doctrine, a case or controversy can only be created by parties with a concrete legal interest.  It takes two to make a case or controversy.  The concrete legal interest of a defendant is usually obvious, but logically it should be no less of a requirement.

The defendants’ standing is important here because in each case the executive branch of the relevant government refused to defend the law.  If the executive branch is the only defendant with an Article III interest in a case, that should be an end of it (just as, in a suit between two private parties, if the defendant defaults or agrees to settle, a third party lacking an Article III interest in the case could not intervene to continue the suit for political or ideological reasons).   Neither the U.S. executive branch (in Windsor) nor state law (in Hollingsworth) can create Article III standing in a third party simply by authorizing their participation.

Thinking of the problem in this way also shows the right outcome.  The third-party defendants should not have been allowed to intervene (as they were) at the trial court level.  Once the executive branch refused to defend, the cases should have been over.  The right result is to direct everyone to go back to that point.

NOTE:  I’ll address these interesting points raised by Chris Green in a later post.