Standing in the Same-Sex Marriage Cases

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. AndyK says:

    At least in DOMA, the AG stopped defending it prior to the SJ. Consequently, it was not a case or controversy and likely the district court opinion (which was as applied, not facial) should be vacated, as there was no “application.” Obviously there is the question of finality, but the internal wrangling indicates there was no final decision and the case was not ripe.

    And if it were ripe, well, that certainly would call into question numerous other times this administration has tried to avoid litigation on a subject. Frankly, the Supreme Court, from my discussion with some clerks, is quite cognizant of the ways this administration has tried to keep cases out of the court system. What that means for DOMA, I don’t know. But there is a real separation of powers issue here when the administration aggressively abdicates its “faithfully execute” charge.

  2. Joe says:

    The AG might have “stopped defending” DOMA but it is still being enforced. How was it not a “case or controversy”? Did Ms. Windsor get her relief? Not aware of it.

    I also don’t know what “tried to keep cases out of the court system” means. It surely is strange here where it went out of its was to support BLAG’s authority, though quite arguably it’s weak. It accelerated ACA. It is requesting an acceleration of the recess case.

    The Administration is not “abdicating” here. It is “executing” DOMA. DOMA is being defended and the Administration is not opposing the right of such a defense. As others have noted, including in at least one instance where John Roberts assisted, Presidents in the past have not defended the constitutionality of laws.

    I’m frankly confused.

    As to the OP, I assume the Prop 8 district court ruling would stand, which would be a tad ironic. What is likely to happen there is that other couples will seek out marriage rights (the rulings would only be binding on the couples, I guess) & the governor or relevant party will instruct the clerks to do so. Per earlier state legislation, the people on top get to lead the way there. We saw that when locals tried to recognize same sex marriage on their own. The state could block attempts and have standing, but won’t.

    I think this would be okay though I’m okay with more expansive standing there too. Walter Dellinger’s brief though against standing is pretty good.

    As to DOMA, it’s harder. Obama’s whole effort here to get a legal ruling. CA rather it just go away. He wants a ruling. But, if the SC refuses to recognize standing, what to do? I guess he would argue that the district ruling stands, so Windsor wins. But, it only applies to the parties. Not even to the 2CA. Obama can argue that the rulings below are instructive at least & not apply DOMA in the 2CA (1CA?).

    Finally, reference is made to the actual district. Is that how things work? If a district court ruling holds something does it apply to that district that way? Or, does it just apply to the parties? I know there is a stare decisis rule for appeals courts until an en banc panel overturns it. Is there a stare decisis rule for districts? What if a new judge is appointed? That doesn’t seem right, but maybe someone else knows.

  3. Joe says:

    erratum: Per earlier state legislation,

    should be “litigation.”

  4. Don in Phoenix says:

    There’s a simple constitutional solution to the standing argument in both cases.

    If the appellant’s don’t have standing, the appeals are dismissed, and the judgments of the district courts are tacitly affirmed. Obeying the district court orders with respect to the parties but treating similarly situated parties differently, the governments (US and CA) would be in violation of the equal protection clauses of the relevant constitutions. They must either apply the injunctions to all similarly situated parties or appeal the injunctions.

    California has indicated they will comply with the injunction, and therefore if there is no standing for Hollingsworth there is no case. The US is implicitly pursuing the opposite strategy – it can argue that dismissal would create an independent equal protection dilemma that allows (requires) the Court to reach the merits.

    Is that reasoning a bit too novel?

  5. Larry Rosenthal says:

    One thing is, I think, abundantly clear — these cases presented justiciable controversies in the district court. The plaintiffs in both pending cases had been denied benefits (the ability to marry in Hollingsworth v. Perry; federal recognition of the validity of a marriage in Windsor). They had therefore experienced injury in fact fairly redressable by a favorable judgment. That was not altered by the original defendants refusal to defend on the merits; despite that, Perry did not receive a marriage license, and Windsor still faced tax liability. If a defendant could obtain a dismissal of a case as nonjusticiable merely by refusing to defend, all defendants could presumably use this technique with great efficacy, and Article III courts could never enter default judgments. There are interesting questions about whether the current certiorari proceedings in the Supreme Court are justiciable, but it is clear to me that none of this affects the propriety of the judgment of the district court in Perry, or the judgment that the Second Circuit issued in Windsor.

    Larry Rosenthal
    Chapman University School of Law

  6. Erik says:

    Wouldn’t Res Judicata apply to any future litigated cases on this issue where California’s governor is the defendant? In other words, why wouldn’t the District Court’s opinion settle the issue on Proposition 8 if the 9th Circuit’s opinion were vacated?