Standing in the Same-Sex Marriage Cases
posted by Gerard Magliocca
I’d like feedback on the following question. Suppose the Supreme Court (or the controlling concurring opinion) says that there is no standing in the DOMA and Proposition 8 appeals. Where would that leave us?
My understanding is that such a holding would vacate the Second Circuit and Ninth Circuit opinions. At that point, all you would have are the District Court opinions. Then could California, for example, change its mind and appeal from that ruling in Perry to create standing for a new Ninth Circuit opinion? (The Justice Department, I assume, will not do this for DOMA.) Is there finality in a decision not to appeal when a case is returned to the District Court?
If these District Court opinions are final, then who else besides those litigants could get relief? Presumably, only same-sex couples who live within the jurisdiction of the respective district courts. Does that mean that if a couple moves to that district they are immune from DOMA or can get married? If so, what residency is required? Could I just rent my house to folks for a day to make them eligible?
All of this might suggest that dismissing these cases on standing grounds would be a mistake, or that not defending them on the merits was a mistake.