The Case for Standing — or Lack Thereof

Emily Bazelon asks “do we really want gay marriage to become legal in California because of what’s essentially a technicality?” Uh, yes — that’s EXACTLY what we want.

Emily Bazelon asks:

But in the end, do we really want gay marriage to become legal in California because of what’s essentially a technicality? That seems a highly unsatisfying resolution to what was always billed as an epic case, and it would expose in the left a bit of hypocrisy about standing much as it would the right.

Answer: yes, that’s precisely what I want.

If the Prop 8 is dismissed for lack of standing, then that means that gay marriages will be legal in California.  It will move the cause forward.  We will see gays and lesbians get married, with the end of the world not occurring.

And most importantly, it will mean that all of this can occur without worrying about what Anthony Kennedy will feel like when he wakes up in the morning.  Kennedy has been sympathetic on issues of gay rights: after all, he wrote Romer and Lawrence.  But taking this case to the Supremes means asking him to hold that gay marriage is mandated across the United States.  He doesn’t want to do that: that’s why he wrote Romer narrowly, without squarely facing the issue of review standard for sexual orientation discrimination.  It’s too much of a risk to force him into this kind of position.

Bazelon rejects this.  “Isn’t it odd,” she asks, “to think that a majority of the voters could pass a law, and then just because the governor and the attorney general don’t like it, no one gets to stand up for it on appeal? Especially after they’ve been allowed to do so at trial?”

Well, yes — it is odd.  And you know what?  Courts do this all the time.  The Supreme Court in Brown v. Board of Education did not rest its decision on the equality principle, but rather a bunch of social science research concerning educational outcomes.  And you why that was?  Because the justices knew that if they wrote the decision more broadly, they would have to come to grips with — irony alert – anti-miscegenation laws.  And they knew that the time wasn’t right for that.  That actually is what standing is really about.

I’m no fan of restrictive standing, and think that constitutionalizing it is a terrible idea.  But I’ll take it.  That’s the way progress works.  And if this causes conservatives to become enraged at restrictive standing rules, we can’t say we didn’t warn you.  Maybe your friends like Chief Justice Roberts can actually do something about it.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

16 thoughts on “The Case for Standing — or Lack Thereof”

  1. Another reason to favor a decision based on lack of standing is that, in this case, unlike in other standing cases, a ruling that no one has standing to challenge the lower court decision would be hardly distinguishable from a decision on the merits. This is because the reason that no one would have standing is that no one challenging the decision to allow gay marriage would be affected that decision, because, as the lower court judge said, no one challenging the decision seeks to marry someone of the same sex. But that's the point of the decision on the merits: since no one is harmed by gay marriage, there is no rational basis to disallow it.

  2. This sounds a lot like Bickel in *The Least Dangerous Branch*: the Court should engage in whatever political tricks are necessary to kick bad political decisions down the road a ways and force a "sober second look." (And if the legislative branches of government come back repeatedly and say yes, they really mean it, the Court should fold: Bickel's was advocating a sneaky form of judicial restraint, not of activism.)

    I can't see, however, how the strategy proposed here would force anything *more* than a sober second look. As soon as a gay couple in Louisiana or Mississippi tries to get married and is turned down, we'll have a case in which the governor and AG very much feel like standing up for het-only marriage on appeal. And then it will depend on what Anthony Kennedy feels like when he gets up in the morning. No?

  3. Andy — you have a point. But remember that most in the gay rights movement didn't want the Boies/Olson litigation to happen; they weren't convinced that they would win. I would quite surprised for people in the movement to try to bring a case in Louisiana or Mississippi. And you have to have a warchest to bring one of these because of the witnesses required, etc. Maybe you'll get a rogue case, but I don't think so — yet.

  4. What did Benjamin Franklin say? "Nations come into the world like bastard children – half inspiration, half improvisation." Looks like new law comes into the world like that, too, for better or for worse. Whatever forward motion you're interested in, waiting to move until the ground is perfect under your feet is just asking for delay.

  5. I would expect the Court to deny cert from a southern court refusing to force the state to grant a marriage license.

  6. I think that Henry's point is important in the larger context: injury to someone's sense of moral appropriateness or to their sense of exceptionalist self-worth, is not an injury of the kind that grants standing to challenge a legal decision. And especially in a setting where some soi-disant conservatives assert themselves mortally wounded whenever the state doesn't act to advance their agenda and suppress viewpoints other than their own, this is important to remember. If being outraged, OUTRAGED I tell you! about some state action were sufficient to confer standing, the judicial and legislative history of this country would be rather different.

  7. "As soon as a gay couple in Louisiana or Mississippi tries to get married and is turned down, we’ll have a case in which the governor and AG very much feel like standing up for het-only marriage on appeal."

    Uh, my friend, the district judge in La. or Miss. (my home) isn't going to find that gay marriage is a constitutional right. Neither is the Fifth Circuit. And SCOTUS will be under no obligation to grant cert.

  8. To me, there's something very elegant about the possibility that the 9th Circuit will let the decision stand because of a determination that none of the would-be appellants have standing. As Henry's comment implied, the standing determination in this instance would actually be a tacit determination on the merits, since a determination that opponents do not have standing vindicates the D. Court's rationale that no one is harmed by gay marriage. And it would also confront the conservatives on the S.Ct. with a real quandary, as overturning the determination that opponents lack standing would be, for them, a much more difficult lift than overturning the decision itself.

  9. From the perspective of the appellants in this case, it looks to me like they should fold their tents and go home. I think the Ninth Circuit decision is a forgone conclusion: if somehow Judge Walker's decision is overturned by the panel, it will be upheld by the en banc review.

    That effectively establishes a right to same-sex marriage in the entire Ninth Circuit (California, Oregon, Washington, Hawaii and Alaska). Of course, that would be stayed pending appeal to Roberts and Company. If they appeal to the Supreme Court, and Kennedy decides to bite the bullet and do the right thing, everyone in the U.S. has a constitutional right to same-sex marriage. I don't know what the appellants loss function looks like, but I can't imagine them having a loss function that doesn't put a very large loss on that eventuality. Given Kennedy's nature and apparent bias towards keeping government out of the bedroom, they'd have to have a pretty high probability on that outcome.

    Fold now, and Walker's ruling is binding only in California, and they can fight on in the remaining 47 states.

  10. "The Supreme Court in Brown v. Board of Education did not rest its decision on the equality principle, but rather a bunch of *social science research* concerning educational outcomes. "

    I love it that you put it this way. We don't take social science research as serious as we ought to. And yet it is at the heart of modern progressive policy. It is *science-based*. Unlike most conservative ideas about social policy.

  11. Montana is also in the Ninth Circuit, much to the continuing dismay of certain among us.

    Seven Montana gay couples filed suit last month, in state court, seeking to force the state to provide benefits equivalent to marriage. (There's a Rove era constitutional amendment). When it gets there, I'd think our Supreme Court might just be willing to buy into it.

  12. @Anderson et al: I'm a little embarrassed to be pretending to know the first thing about legal procedure. That said, the fact that a district court judge in Mississippi or Louisiana wouldn't find a right to gay marriage seems to me hardly the point: if gay couples brought a lawsuit and lost, *they* would appeal, etc., etc., and the Supremes ultimately would decide. (If CharlieCarp is right and the Supremes would deny cert, that would also represent a clear decision.) No?

    Jonathan's point about how these lawsuits would cost money and the gay rights movement would be unwilling to provide it is more apt. Such lawsuits would indeed be "rogue." That said, I think it's more likely than Jonathan does that such lawsuits would be brought, with pro bono representation if necessary, if gay marriage became legal in the whole Ninth Circuit. It would start to feel incredibly galling to be unable to marry in Mississippi (or, to take less extreme cases, Virginia or Missouri) when a quarter of the country allowed it.

  13. When the Supreme Court denies certiorari, its denial officially implies nothing about the merits of the case. Nevertheless, if it denied cert. in a case in which a gay couple had lost its claim that a state had violated the Constitution in denying it the right to marry, one might reasonably speculate that the Court did not wish to overturn the decision. The Court might, however, be waiting to see if a court of appeals in another circuit found a constitutional right to same-sex marriage. The Court typically takes a case when there is a split in the circuits.

  14. It is kind of ironic that the increasingly cramped doctrine of standing would preclude groups from pursuing an appeal on Prop 8, which would likely be the case if standing is based purely on their having a "public interest" as citizens. The state clearly has standing because it's the one that has to issue marriage licenses. What I don't know is whether standing could be based on a different kind of harm — e.g., the interest of California citizens in having voter referendums enforced and not nullified. This strikes me as more plausible. The Court has so bollixed up standing analysis that I am not sure what it is any more.

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