The Supreme Court will hear two gay marriage cases later this month. This diary entry will focus on one- Hollingsworth vs. Perry- the Proposition 8 case out of California. The ballot initiative was prompted by a California supreme court decision which determined that state’s ban on same sex marriage violated the state constitution’s guarantee of equal protection. It should be noted that at that point in time, California’s laws were rather liberal without allowing gays to marry. In fact, a good argument could be made that there were no equal protection problems BUT FOR the prohibition on marriage. In response to the decision, Proposition 8 was proposed and voted upon and it passed. The result was to negate the California supreme court’s decision. Between its passage and the decision, same sex marriages were held.

Almost immediately, the LGBT community appealed the legality of Proposition 8 to the federal courts. In the interim, the state itself decided not to defend the ballot initiative’s results thus leaving open the question of standing. When a law is challenged in court, it is usually the job of the state attorney general to defend that law. Of course, they can and they have decided not to defend against this challenge. Therefore, it was left up to the ballot initiative’s backers to defend the new law in the courts. The United States District Court, before they could do anything, asked the California supreme court to determine if they had standing to defend the law and that court determined that they did. With the standing issue apparently cleared up, the District Court held a trial and determined that the California initiative lacked a rational basis and Proposition 8 was struck down. The case was then appealed to the infamously liberal Ninth Circuit which affirmed the District Court’s findings, but then issued a stay pending further appeal. Thus, even though found unconstitutional at the District Court and appeals level, no same sex marriages have been performed in California.

The purpose of this entry is not to re-argue the case heard in the District Court. A look at the “merits” will be the focus of another entry. Suffice to say, the anti-gay marriage forces more or less doomed their defense of Proposition 8 through a waffling on the justifications (again, to be discussed in another entry). Meanwhile, the LGBT community took some steps along the way that can best be described as over-reach.

Instead, this entry will examine another aspect of this case which the US Supreme Court has revived. When a case is presented to the Court, the appellant generally asks the Court to decide particular questions of Constitutional law and then cites justifications for those questions. Sometimes they note the differing opinions from different circuits on the same question, or they may note that a certain point has not been completely fleshed out by a previous ruling, or that a ruling is being interpreted differently from what was originally intended. Every so often, however, the Supreme Court, when they grant review will add a question or two based on the briefs submitted.

For example, the broad decision in Citizen’s United was predicated upon a question brought up in the original argument of the case. With the Obamacare case, Roberts revived the taxation question which, we later learned, was a means of justification for upholding the law. In that case, the tax question was settled at the lower court levels, but revived by the Supreme Court. They even appointed a counsel to defend the argument since neither party were disputing the lower court determinations. Just last term also, they held over another case- the Kiobel case- and based re-argument on an added question. And here is where things become interesting. Usually when this is done, they are trying to either get to the gist of something (as in Citizen’s United and Kiobel) or they are trying to justify something for a more narrow ruling without getting to the gist of something (Obamacare amd this case). Remember, in the Obamacare case, Roberts specifically stated that the mandate would most likely not stand using a Commerce Clause power argument. Instead, he let the law stand as a tax issue. The other four who signed onto his decision likely knew they could not sway Roberts to the more liberal Commerce Clause argument, so they were left to sign onto his Tax Clause argument since the practical effect was the same- the mandate stands.

In the present gay marriage case, the added question involves the notion of “standing.” As mentioned earlier, the overwhelming majority of the time, the state or federal government will defend the law in court since they are the ones who have to enforce it. In this case, the state of California- namely the Governor and Attorney General- refused to defend the law. Therefore, it was left to Proposition 8’s proponents to defend the law. To have standing, one must suffer a harm under the law. Obviously, the gay couples denied the right to marry are suffering a harm in the legal sense. And under normal conditions, if the state defended the law, they would be a natural party to the case. The question is whether Proposition 8’s proponents are a “party” or are they harmed by it’s now non-enforcement?

The most likely case that could be used as a compass here is Arizonans for Official English vs. Arizona. This is a somewhat analogous case since a ballot initiative’s proponents were a party to the case, just as Hollingsworth is a party in this case. The Court never reached the issue of standing and instead rendered that case moot. But, in disposing of the case, they questioned whether a ballot initiative’s sponsor(s) could ever have standing. This case, by virtue of the question added, can finally answer this Article III conundrum. Of course, if they answer in the affirmative, the Court can then move on to the more substantive questions in this case- namely, if a state defines marriage between a man and a woman and/or bans gay marriage, does that violate the concept of Equal Protection? There is the important question of what level of scrutiny should be applied also- the subject of another entry at another time.

However, if they answer in the negative, then the Court can avoid the larger questions implicit in this case. The practical effect would be to leave the lower court rulings stand. Since these cases evolve from Los Angeles and Alameda counties, the practical effect would be to allow gay marriage only in those counties. Of course, someone will sue in California court for uniformity and the state will oblige and gay marriage will be a reality throughout California. By denying standing to the proponents of Proposition 8, the Supreme Court would (1) not be making a broad pronouncement of LGBT rights and (2) leaving the decision specific only to California. That is, no other state would be bound by the decision, nor would the federal government.

Suppose another state bans same sex marriage (Alabama, for example) and a homosexual rights group sues to have that ban ruled unconstitutional. Obviously, a state less liberal than California would be a party in support of the law. In that hypothetical case, assuming the Court even takes the case, standing would not be an issue and they could move on to the alleged merits of the issue. In other words, through a denial of standing, the decision would be California-specific since the state itself is not a party to the case. If the state (the enforcing party) is a party to the case, there is no issue of standing and they can proceed to the merits of the case.

In the other case involving DOMA, the issue of standing was also raised by the Court. Here, however, there is a greater chance the Court will reach the deeper parts of the issue. Although the Obama Administration has decided not to defend DOMA in the courts, that task is left to the Bipartisan Legal Advisory Group- a congressional group. Since the executive branch decided not to defend the law (although they also decided to enforce the law- weird), the legislative branch through BLAG is left with that task. Thus, the “warnings” regarding the issue of standing in the Arizona case cited earlier would fall on more firm ground although they did specifically warn against “quasi-legislative” groups “standing in” for a regular legislative body or the executive authority. It is conceivable, but unlikely, they would decide the DOMA case on standing alone.

My educated guess is that in the Proposition 8 case, the Court will decide that standing does not exist and they will decide the case without addressing the broader Equal Protection arguments. Although it will be a victory for the gay community of California in the practical sense, it will not be a victory for the LGBT community nationally. As I have written previously, several Justices have decided not to wade into this issue too deeply. No less a liberal Justice than Ginsberg has surreptitiously warned about entering this area while legislatures sort it all out first. She, in an interview and speeches, noted that when the Court declared a broad right in Roe vs. Wade, they created the controversy that exists today. Many legal experts note that abortion laws were falling by the wayside or being liberalized at the legislative level before Roe was decided. A similar phenomena is noted here as more states are approving gay marriage as the 2012 election results show in Maine, Maryland, Minnesota and Washington. That is not to say that same sex marriage is correct but only that its resolution is better left to the voters or their elected representatives. Had not Proposition 8 been proposed and passed, it is likely a liberal state like California would have approved gay marriage legislatively at some point in the near future. Instead, the LGBT community in that state, like in so many other states, opted to go the judicial route. When that happens and a court rules a certain way before the issue is decided legislatively, it holds less weight which is the point Ginsberg makes. I am not really a fan of Ginsberg, but in this case she certainly makes a lot of sense.