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12/14/2012

Standing and Gay Marriage, Part II
Michael Ramsey

In a prior post, I argued against standing in United States v. Windsor, the challenge to the federal Defense of Marriage Act (DOMA).  This post turns to the question of standing in the state case, Hollingsworth v. Perry.  (Walter Dellinger has a related post at Slate: No Harm, No Standing).

For standing purposes, Hollingsworth is a lot like Windsor.  Oversimplifying a little, California refused to grant a marriage license to Perry, the plaintiff, for a same-sex marriage because California law limits marriage to the union of a man and a woman.  When Perry sued, the state defendants refused to defend the law (which had been passed as a ballot initiative, called Proposition 8, rather than through the legislative process, as permitted in California).  The group that had sponsored Proposition 8 then intervened to defend it; they are now the named defendants/petitioners in the Supreme Court (I’ll call them the Sponsors).

Thus the Sponsors are similar to the Bipartisan Legal Advisory Committee (BLAG) in Windsor: they think the law is constitutional and is a good idea, but it’s hard to identify a concrete, personalized interest they might have to make them a proper party under Article III’s “case or controversy” requirement.  As noted in my prior post, the core of the case-or-controversy requirement, under Justice Scalia's test in Lujan v. Defenders of Wildlife, is a concrete personalized interest in the outcome, as opposed to a mere political interest.  Like the BLAG in Windsor, the Sponsors appear to be interested in this case because they think same-sex marriage is bad policy, not because it injures them in some way.

There are two main differences that give the Sponsors a slightly better standing argument than the BLAG.  First, they devoted time and energy to persuading voters to pass the Proposition.  In this sense, they are distinct from ordinary people who like the law but didn’t invest in its enactment.  However, their interest, it seems, is still no more than ideological (or policy-driven, to use a less loaded term).  They will not suffer any personal loss if the law is invalidated; they will only suffer a political loss.  As Dellinger puts it in Slate:

The heart of the case is whether same-sex couples have the same marriage rights as opposite-sex couples. Prop 8’s backers have no more interest in that question that any other California citizen who objects to gay marriage.

I assume that people who invest time and money to persuade legislators to approve ordinary legislation don’t have a concrete personalized interest in its validity.  A central point of standing law derives from separation of powers: courts exist to vindicate personal legal interests, not political or ideological ones.  Just because the Sponsor’s political interest is especially strong, to the extent that they invested time and money to further it, does not transform it into an Article III interest.  Otherwise, for example, environmental groups – which invest time and money in environmental causes in a way ordinary people do not – might on this basis have standing in environmental cases (and, per Lujan v. Defenders of Wildlife, they don’t).

The second difference from Windsor is that the federal court of appeals considered the question of the Sponsors’ standing and, oddly, certified the question to the California Supreme Court.  The California court replied that under state law the Sponsors did have standing to defend the initiative, and the federal court adopted that view.

But the question in federal court is whether there is a “case or controversy” within the meaning of Article III.  That isn’t a question of state law.  Of course, California can adopt as broad a standing rule as it likes for state court.  It cannot, however, change the meaning of Article III, or create the sort of concrete personalized interest Article III requires simply by declaring one. 

Professor Dellinger says, with some understatement:  “The U.S. Supreme Court will surely be concerned about how far states can go in authorizing litigation in federal court by citizens who themselves have no legal stake in the matter in dispute.”  I would say that, as a matter of Article VI supremacy, states cannot authorize federal court litigation that Article III prohibits.  Consider cases involving environmental policy, such as Lujan.  Could California declare that all citizens (or just environmental groups) have a personal interest in protecting the planet under state law, and therefore have standing in environmental cases?  Of course – but only in state court.  California couldn’t reverse the Lujan rule and create generalized environmental standing in federal court.  Similarly here, it can’t by state law give the Sponsors an Article III interest that they wouldn’t otherwise have.

In sum, the Sponsors lack Article III standing because they don’t have an interest in same-sex marriage apart from a political or ideological one.  It may be that no other private party does either – but that, as Dellinger points out, is because same-sex marriage doesn’t really hurt anyone in particular.  I would not go as far as he does, to say that this shows bans on same-sex marriage are unconstitutional; but I think it reinforces the role of Article III standing in separation of powers.  Again, courts exist to vindicate personal legal interests.  The Sponsors don’t have any. 

What should be the result of this conclusion?  Here I disagree with Dellinger, who says that it would only erase the appeal and leave the district court’s opinion intact.  (The district court issued an opinion holding the law unconstitutional after an elaborate trial). But the district court also lacked Article III jurisdiction as to the merits of the case.  Dellinger implies that the Sponsors only intervened after the state refused to appeal; in fact the state, like the federal government in Windsor, refused to defend the law from the outset (see the statement of facts here).  If the sponsors had been excluded as parties, as they should have been, the result would be a default judgment against the state, on the ground that the state refused to litigate.  Thus the outcome should parallel the outcome I suggested in Windsor: Perry should get her marriage license by default, and all the extended but unneeded speculation by various courts on the merits of the case should disappear.