By Ryan Blodgett
During oral arguments Tuesday at the Supreme Court in Hollingsworth v. Perry, the Proposition 8 case, Charles Cooper had the chance to speak first in defense of the challenged law. It didn’t take long for justices to question whether he should be there in the first place.
The justices started the argument by asking questions about standing. Standing is one of the most significant and probably least interesting issues in the Prop 8 case, but there is a good chance the Supreme Court will render its decision based on this issue.
This judicial doctrine says that only those who are closely enough related to something are allowed to sue over it, and it comes from a part of the Constitution that most people never think about.
In Article III, the Constitution sets up the country’s judicial system and gives federal courts the authority to decide “cases and controversies.” The Supreme Court has interpreted that to mean that federal courts only have the power to decide cases involving active issues. What constitutes an “active issue” is pretty complicated and one of the primary subjects taught in what is widely considered to be the most difficult class in law school (federal courts).
The reason standing is an issue in the Prop 8 is because the government of California isn’t defending the constitutionality of the law — some other people are. Normally when a law is challenged, the government is the only party that defends the it and argues that it is constitutional. In this instance, the California government isn’t particularly against same-sex couples being able to marry, so they haven’t been defending Prop 8. Instead, some California citizens who oppose marriage equality decided to defend the statute’s constitutionality on their own. This kind of thing doesn’t happen often, but it is allowed by the California state constitution.
Anyway, back to Mr. Cooper (get it?). The justices first asked him if the government could designate these citizens to defend Prop 8 on its behalf, thus giving them the same standing as the state’s government. Based on the way the justices asked questions, there may have been some disagreement about this. It’s hard to tell, though, because what the justices ask about doesn’t necessarily have anything to do with what they think about an issue.
Next, Ted Olson, the conservative lawyer who represented George W. Bush in Bush v. Gore in 2000, spoke in opposition to Prop 8. Just as they did with Cooper, the justices quickly interrupted Olson’s argument to ask him about the standing issue. He argued that, although it is not only the governor or attorney general of California that could defend Prop 8, who would have standing is still quite limited. He argues that because defending a statute’s constitutionality is traditionally a function of the government, to have standing to defend it, a party must be appointed as an officer of the government, creating a fiduciary relationship.
Now if the Supreme Court did decide that there was a lack of standing in this case, that wouldn’t necessarily be a bad thing for supporters of marriage equality. Since the district court ruled that Prop 8 is unconstitutional, if the Supreme Court found a present lack of standing, it would dismiss the case and vacate the circuit court’s ruling for the same reason. That would leave the district court’s ruling in force, meaning that Prop 8 would be unconstitutional.
In the end, it would reinstate the ability of Californians to marry who they choose, but this wouldn’t be the sweeping victory that many advocates of marriage equality hope to see.