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Prop 8, DOMA, and the Week Standing Became Sexy

By Robyn Hagan Cain on March 28, 2013 | Last updated on March 21, 2019

The Supreme Court doesn't care about Internet memes or mass protests. The Justices aren't influenced by messages projected on the Court's darkened columns or Facebook profile pictures. The Court cares about standing.

And now, a lot of other people do, too.

Standing is finally a hot topic because the outcomes in the Proposition 8 and Defense of Marriage Act (DOMA) cases could turn on a simple procedural issue: Can the Court even rule on the merits?

For the Prop 8 litigants, standing could signal an unsatisfying end to years of legal battles. Tuesday, the Justices sounded reluctant to issue a sweeping opinion allowing for same-sex marriage nationwide, but Justice Anthony Kennedy (originally thought to be the swing vote in the case) also expressed concern about the impact that the Court's ruling could have on the children of same-sex couples.

Instead of issuing an opinion on equal protection, the more likely outcome is that the Justices either find that the Prop 8 proponents lacked standing to argue the case, or "DIG" -- dismiss the petition as improvidently granted.

Wednesday, standing took center stage once again, this time concerning Section 3 of DOMA, which limits the federal definition of marriage to heterosexual unions.

Harvard Professor Vicki Jackson made a compelling argument that the Court doesn't have standing to rule on DOMA because the Obama administration isn't asking the Supreme Court for relief from the Second Circuit ruling that struck down the Defense of Marriage Act as unconstitutional; the administration is merely asking the Supreme Court to affirm the appellate court's ruling.

Further complicating matters, there is no circuit split to resolve: both the First and Second Circuit agree that the law is unconstitutional.

Chief Justice John Roberts described this as "totally unprecedented," and Deputy Solicitor General Sri Srinivasan conceded that there is no other case in which all the parties agreed with the lower courts' decisions and the Court nonetheless upheld jurisdiction.

Paul Clement, arguing for the Bipartisan Legal Advisory Group, told the Court that BLAG's standing in the matter was a no-brainer. "This Court not only addressed the issue of the House's standing in [INS v. Chadha]; it held that the House is the proper party to defend the constitutionality of an Act of Congress when the executive agency charged with its enforcement agrees with plaintiff that the statute is unconstitutional." Clement claimed that both the House rules and a January House Resolution to support to DOMA defense gave BLAG the power to defend the law.

While the Justices were skeptical of standing in the DOMA challenge, they also seemed more receptive to deciding the merits of petition than they did at the conclusion of the Prop 8 arguments. Our guess is that the Court will pull back from Prop 8, but move ahead with a merits-based decision on DOMA.

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