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Gay marriage: How Supreme Court cases could end with a whimper (+video)

A wildcard in the two landmark gay marriage cases before the Supreme Court this week is that the justices could rule on the question of 'standing,' not the core issue of whether Prop. 8 and DOMA violate the rights of same-sex couples.

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The so-called “standing” question arising in both the DOMA and Prop. 8 cases is whether the parties that intervened in the litigation in place of government officials have an interest in the case sufficient enough to trigger standing under the high court’s precedents.

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In 1987, the justices upheld an effort by New Jersey legislators to defend a law when executive branch officials in the state refused to do so. What is unclear in the context of DOMA is whether standing must be sought by the full Congress (both House and Senate) or just the House of Representatives, as in the DOMA case.

A second question raised by the justices themselves is whether the actions of the Obama administration in the DOMA case undermined the executive branch’s own legal standing in the case.  

That question relates to the fact that the Obama administration didn’t simply refuse to defend DOMA in court. Government lawyers presented arguments that mirrored those of the plaintiff – that DOMA should be struck down as unconstitutional. In essence, both sides of what is supposed to be an adversarial proceeding were advocating the same result.

That is not a “case” as required by the Constitution.

That’s where the House leadership comes in. Their lawyer presented the kind of argument that normally would be presented by the government – defending the constitutionality of the challenged statute. So the case was adversarial, but only if the House leadership’s participation is credited with the status of a full party to the dispute.

The Obama administration rejects this view. Justice Department lawyers insist that for purposes of establishing standing, the underlying “case” is a simple tax dispute between the United States and the plaintiff, Edith Windsor, who is seeking a $363,000 estate tax refund. Since the US government has still not cut a refund check for Windsor, the US still retains standing, government lawyers say.

As if this situation wasn’t complex enough, the high court has asked yet another lawyer, Harvard Law Professor Vicki Jackson, to argue the standing issue before the court from a perspective independent of any other parties. She maintains in her brief that neither the House Republican leadership nor the US government have standing to appeal the DOMA case.

If a majority of justices agree, it would mean that the court would lack the necessary jurisdiction to hear the appeal and decide whether DOMA is constitutional or not.

A similar “standing” issue arises in the Prop. 8 case, and many legal analysts say it is even thornier than in the DOMA case.

When California officials declined to defend the constitutionality of the ballot initiative, the trial judge allowed Prop. 8 organizers to defend the measure.

After the judge declared Prop. 8 unconstitutional, lawyers for the Prop. 8 organizers filed an appeal to the Ninth US Circuit Court of Appeals.

The appeals court questioned whether the Prop. 8 organizers had the necessary legal standing to appeal. The appeals judges cited a 1997 Supreme Court decision in which the court expressed “grave doubt” about whether proponents of a ballot initiative would have standing to defend its constitutionality.

The Ninth Circuit panel in the Prop. 8 case referred the issue to the California Supreme Court. That court ruled that when state officials refuse to defend a challenged ballot initiative, California law empowers the official proponents of a voter-approved initiative to stand in the shoes of government officials for purposes of defending the constitutionality of the initiative.

Opponents of Prop. 8 are urging the Supreme Court to reject the view of California’s high court and rule that the Prop. 8 organizers lack standing. If the high court agrees, the Ninth Circuit decision would be vacated and the case would end, with the justices bowing out of the controversy without ever addressing the broader constitutional issues.

The Prop. 8 case, Hollingsworth v. Perry (12-144), is set for oral argument on Tuesday morning. The DOMA case, US v. Windsor (12-307), will be heard Wednesday morning.

A decision is expected by late June.

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