Apart from the substance of the issues involved, the two same-sex marriage cases argued before the US Supreme Court last week provided an interesting legal twist.
In the adversarial system that exists in the US, the two parties involved must have a direct vested interest in the issue in order to have ‘standing’ to argue their side. For example, if the public school system in the district that I live in decides to teach religious ideas in science classes, I cannot take them to court simply because I, as a concerned citizen, think it violates the constitution. But if my child is in one of the classes that is doing this, then I can claim that I, as the legal custodian of the child and responsible for her welfare, am experiencing direct harm and can sue to stop the practice.
The same thing applies to appeals. Once standing has been established in the lower courts, the losing side in a case is assumed to have standing to appeal to the higher courts, though this is not always true. But the case gets complicated when the parties who argued the losing case in the lower courts bow out or even switch sides. Who then has the standing to appeal the verdict to the higher courts?
This is what happened in both California’s Proposition 8 case and the DOMA case. In the case of duly enacted laws, if they are challenged in court, it is up to the government to defend those laws. And if they lose in the lower courts, it is usually they who appeal to the higher courts. But in the case of Proposition 8 (Hollingsworth v. Perry) the state of California decided it would not appeal. and in the DOMA case (United States v. Windsor) the federal government also declined to appeal.
With the two ‘natural’ defenders who automatically had standing in the case bowing out (and in the DOMA case even arguing on the same side as the people who won the case), this resulted in the curious situation of others having to step in. In the Proposition 8 case, the people who brought the appeal was one of the groups that sponsored the petition drive while in the DOMA case it was the Republican house leadership.
In civil cases between private parties, the losing side in a case is not obliged to appeal to a higher court. It is solely at their discretion whether to do so or not. But it is an interesting question as to whether governments should be required as a matter of course to vigorously defend a duly passed law even if they disagree with it. In the oral arguments, some of the justices were not happy with allowing the government the option of not defending laws, since that gave them a weapon to nullify laws that they did not like.
The Supreme Court’s conservative justices on Wednesday were sharply critical of President Obama’s approach to a federal law on same-sex marriage.
Obama and Attorney General Eric Holder decided in 2011 that the federal Defense of Marriage Act is unconstitutional. They quit defending it in the courts, but directed federal agencies to continue to comply with the law.
Justice Antonin Scalia said the legal system appears to be “living in this brave new world” in which the Justice Department can simply opt out of its traditional responsibility to defend federal laws in the courts.
He questioned who has the power to decide the government will not defend a particular law.
“It’s only when the president thinks its unconstitutional?” Scalia asked. “Or could the attorney general, or the solicitor general, impose the same determination?”
Citing his own experience as a lawyer in the Office of Legal Counsel, Scalia said DOMA does not meet the criteria for laws the Justice Department can opt not to defend.
One can see their point. But on the other hand, forcing the government to defend cases they disagree with may result in them putting in a deliberately weak or half-hearted effort, making a sham of the whole process. I think that if the government does not want to appeal, then other parties who really care about upholding the law should be allowed to step in, though that raises other problems such as who should be allowed to do so. The issue of standing would get even murkier than it already is.
Some justices also seemed peeved that they were being put in the position of having to decide an issue that Congress seemed afraid to touch. Chief Justice Roberts even suggested that if the Obama administration disagreed with DOMA they could have simply avoided enforcing it.
I was surprised at his suggestion that governments should ignore laws they don’t like. It is true that governments do not enforce all laws but usually the ignored laws are antiquated ones that people often don’t even know are still on the books but legislatures haven’t got around to repealing them. The government could hardly do that with the DOMA case.
Some justices were clearly unhappy with having to deal with these cases and thus they may punt, using the standing argument to wriggle out of it. The court may even rule that it had been a mistake to agree to hear the cases at all and not issue any verdict. But in the legal system, even a decision not to decide has legal consequences.
In the DOMA case, this would mean that the lower court verdict striking down DOMA would prevail, meaning that the federal government has to provide federal benefits to same-sex couples, but only in those states where their marriages were legal, not in all states. This would result in a mess if people who were legally married in one state moved to a state that did not recognize their marriage.
The Proposition 8 case is even more problematical. The District Court ruled that bans on same-sex marriage was unconstitutional. The Appeals Court ruled more narrowly saying that once same-sex marriage rights had been granted (as was the case in California) it could not be taken away again by a referendum. Marty Lederman says that there are seven possible outcomes in this complicated case.
Earlier this month, I explained that the briefs in Hollingsworth v. Perry offered the Justices five possible ways to resolve the case: dismissal of the Proposition 8 sponsors’ petition for lack of appellate standing; reversal on the merits (upholding Proposition 8); and three different ways of striking down Proposition 8 (a California-only judgment; a ruling that would guarantee same-sex marriage in the eight states that already offer all the benefits and other incidents of marriage; and a sweeping ruling that would provide a constitutional right to same-sex marriage nationwide).
Tom is right, however, that Tuesday’s oral argument raised the possibility of at least two additional outcomes: that the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case.
I have little idea how the Supreme Court will rule on both cases except that I strongly suspect that it will be on the side of minimal action, rather than a sweeping one.