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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.

By Staff writer / March 25, 2013

People who have been waiting for days to witness historic cases against anti-gay marriage statutes are seen in front of the Supreme Court in Washington on Monday. In their first-ever review of same-sex marriage laws, the nine justices are hearing arguments on Tuesday and Wednesday.

Jonathan Ernst/Reuters



Sometimes huge cases at the US Supreme Court end in a whimper rather than a bang.

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Same-sex marriage will be front and center at the Supreme Court this week - as Justices will hear arguments in two major cases. Jan Crawford reports.

Despite the crescendo of anticipation surrounding the looming showdown over same-sex marriage at the high court this week, it is possible the justices could decide the controversial cases without ever reaching the core issue of whether Proposition 8 in California and the federal Defense of Marriage Act (DOMA) violate the rights of same-sex couples.

Before the justices can take up those fundamental questions, they must first agree that the parties before them have the necessary legal standing to argue the cases, and that the court, itself, has jurisdiction to decide them.

It is a unique feature of the litigation in the Prop. 8 and DOMA cases that the government officials who are charged with the responsibility of defending the constitutionality of challenged laws have opted in both cases not to do so.

In the DOMA case, President Obama and Attorney General Eric Holder decided to stop defending the federal statute in court after concluding that it was unconstitutional. But the administration agreed to continue enforcing DOMA until a definitive ruling in the courts. DOMA bars same-sex spouses from receiving more than 1,100 federal marriage benefits available to opposite-sex spouses.

Similarly, the governor and attorney general of California declined to defend the constitutionality of Proposition 8, the 2008 ballot initiative banning gay marriage in that state. Nonetheless, California officials continued to enforce the constitutional amendment by refusing to issue any new marriage licenses to same-sex couples until a final court ruling on the issue.

There is no question about the legal standing of same-sex couples to file lawsuits complaining that they are being treated as second-class citizens under DOMA and Proposition 8.

There is also no question about the legal standing of the president and attorney general to defend the constitutionality of DOMA in the courts, or the legal standing of the California governor and attorney general to defend Prop. 8 in the courts.

The question hanging over the DOMA and Prop. 8 cases is whether someone else can take up the defense of DOMA or Prop. 8 when government officials decline to do so.

Although it might seem little more than a legal technicality, the issue of who has standing to litigate in federal court is a significant matter. The Constitution limits the courts’ jurisdiction to actual “cases” or “controversies.”

US judges are not permitted to preside over debates or mere policy disputes. Instead, would-be litigants must demonstrate that they have a genuine stake in the dispute that can be redressed by the court.

On the other hand, if no one else can take up the defense of certain challenged measures, it would seem to afford government officials an opportunity to game the system to undermine duly-enacted laws with which they personally disagree.

In both cases, DOMA and Prop. 8, interested parties intervened to defend the measures.

In the DOMA case, a group of Republican leaders of the House of Representatives decided to defend the constitutionality of the 1996 federal marriage law, which passed 85 to 14 in the Senate and 342 to 67 in the House, and was signed by then-President Bill Clinton.

In the Proposition 8 case, organizers of the 2008 ballot initiative entered the case to argue in defense of the state constitutional amendment that passed 52 percent to 48 percent and was endorsed by seven million California voters.


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