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Perry and Windsor: Threads of Standing, Constitutional Quandaries

By William Peacock, Esq. | Last updated on

When the Hollingsworth v. Perry and United States v. Windsor decisions were handed down, many of us reacted positively to the outcomes. The defeat of DOMA Section 2 eliminated the complexity of differing state and federal definitions of marriage and extended equal treatment and benefits to all state-recognized marriages.

However, the Court’s decisions, which found standing in Windsor, but not in Perry, brought forth a number of unresolved issues, including murkiness in standing standards, separation of power conundrums, and that fragmentation of marriage rights across the states with no full faith and credit requirement.

Perry: Referendum Pushers Aren't Legislators

They drafted the legislation. They built sufficient popular support to pass the law. Yet, per the Court's holding, they have no right to fight to uphold that law:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

They can draft, push, and pass legislation, but because their official duties end at the law's passing, they have no standing.

Windsor: Legislators Can Defend Own Laws

Meanwhile, in the realm of federal law, a handful of members of the House of Representatives formed the Bipartisan Legal Advisory Group (BLAG). These legislators, because they hold an official place in the government, can fight to uphold a law in court, even though by doing so, they seem to be usurping the executive function in our divided-powers government.

Problematic Power Scenarios

This, of course begs the question: where are the executives? Our system, at both the state and federal levels, is simple: one group makes the laws, another group enforces the laws and a third group handles any constitutional disputes.

In the federal case, President Obama's administration determined that they didn't wish to fight to uphold a law passed by Congress, a law that, it must be noted, wasn't to everyone's mind clearly unconstitutional per Supreme Court precedent (hence the 5-4 decision).

In the state case, the Governor Schwarzenegger, and later Governor Brown, each refused to enforce a constitutional amendment passed by the majority of California voters. With the Court's holding in Perry, this creates an executive veto over the initiative process.

Don't like the law? Refuse to enforce it. No one else has standing, apparently.

As for Windsor, under its holding, legislators can take up the mantle of the executive and attempt to enforce a law via Article III courts. In these instances, separation of powers is hardly separate at all.

The state of standing, post-Perry and Windsor, seems to be that the executive branch can punt on laws they don't like, while no one else, except those holding an "official" position in the government can fight to uphold a law, and even then, the "official" probably had to play some part in the law's passing. That leaves us with a muddled federal system and a state referendum process that is subject to a Governor's whims, no matter how much we may like (or hate) the outcome in any individual case.

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