Standing and marriage equality

SCOTUS today granted cert on two marriage-equality cases--the Prop 8 case out of the Ninth Circuit (Hollingsworth v. Perry) and one of the Defense of Marriage Act cases (United States v. Windsor, the one out of the Second Circuit, involving a woman seeking a refund on taxes paid on her late same-sex spouses death). The Court also ordered briefing on a bunch of Article III standing issues in both cases. The standing issue in Hollingsworth is whether the proponents of the ballot initiative had standing to intervene to defend the law in the trial court or to appeal the adverse district court ruling, once the governor and attorney general declined to defend it; the Ninth Circuit, relying on the California Supreme Court's answer to a certified question, held that the proponents had standing to represent the interests of the state. For Windsor, the issues are whether the executive can appeal to SCOTUS (since it formally prevailed in the lower courts by getting what it wanted--the law was invalidated) and whether the Bipartisan Legal Advocacy Group ("BLAG"), a committee of House Republicans who took up defense of the law when DOJ changed its litigation position, have standing to defend the law at all.

Earlier this year, Matthew Hall (Georgia) and I had an exchange in Fordham Law Review on these underlying standing issues; it is worth flagging. Matt argues for a deeper theoretical understanding of "standing to defend," using the marriage cases as an exemplar; he concludes that the Prop 8 proponents have standing, but BLAG does not. My response argues that if we just dump the idea of sovereign immunity, we would not need to have this conversation at all; either the United States or the State of California could be sued and could defend and appeal by name. And we would not have to waste all this time and energy figuring out who the "right" or "proper" defendant is, because the government entity obviously is a proper and interested party in a case involving the constitutionality of its laws.

One other note: David Cruz (USC) has a blog and has written about the standing issues throughout the Prop 8 litigation, including this post sharply criticizing the Ninth Circuit's standing decision and its conclusion that the initiative proponents somehow have received delegated authority from the state executive to defend the law in court.