Quite a few smart people are suggesting that the Supreme Court might reject both the DOMA case and the Prop. 8 case on the basis of standing. In a very good Plain English post at SCOTUSblog on the cases, Amy Howe writes:

But there’s a chance that the Court might not even get to the question whether DOMA is constitutional at all. The case may have a fatal procedural flaw. In a normal case that comes to the Court, the party that lost in the lower court is the one asking the Court to review the case. But this is not, as you may have figured out by now, the average case. Windsor and the United States won in the lower court, by getting a ruling that DOMA is unconstitutional. And to make things even more complicated, usually it is the federal government that appears in court to defend the constitutionality of federal laws, but the government isn’t doing that here; House Republicans are doing it instead.

The fate of California’s Proposition 8, before the Court in Hollingsworth v. Perry, seems murkier than DOMA’s. Proposition 8 was a response to a 2008 decision by the California Supreme Court ordering the state to begin issuing marriage licenses to same-sex couples. Before the end of that year, California voters had passed Proposition 8’s ban on same-sex marriage. A few months later, Boies and Olson filed a lawsuit challenging the ban on behalf of two same-sex couples who wanted to get married. (My earlier “Plain English” posts on the case are available here, here, here, and here.)

The sponsors of Proposition 8 defended it in court, because the State of California refused. The two couples prevailed in the federal trial court and then in the U.S. Court of Appeals for the Ninth Circuit, with the latter holding that Proposition 8 was unconstitutional because it took the previously granted right to marry away from gays and lesbians just because people didn’t like them.

That might well be the case but I think it would not only be foolhardy on the part of the court, it would be reckless. Having taken the two cases, I think the court has a moral obligation to render a decision on them rather than just letting the decisions of the lower court stand. That could have been accomplished simply by refusing to take the cases, saving time, money, anguish, and the court’s dignity. Furthermore, the effect would be a statement by the court that executives (and judges!) defend and uphold laws at their discretion, an attack on the rule of law.

If the justices believe, as the Obama Administration and the state of California apparently do, that the Constitution is defended by striking down the DOMA and Prop. 8, that’s what they should say.


From comments, reference to a post on the likelihood that justices have their eyes on history in the DOMA case:

It’s a very Legal Realist take on the SCOTUS, in which Adam is basically saying that whether or not the Supreme Court Justices follow the election returns, they definitely have their eyes on the history books (or at least swinging Anthony Kennedy does). Which is consistent with the view my friend Mitu Gulati and I took of the Court in our article How Do Judges Maximize?

and from that post another one on why that could be a disaster:

Allowing DOMA to survive in this way might be an appealing “second-best” option for the Court’s conservatives. They might well prefer a clear ruling upholding DOMA but recognize that they don’t have five votes for that outcome. Kicking the case back to the trial court would enable the law to live on. Indeed, for conservative justices who, like Kennedy, might be concerned about how history will view them, this option might even be ideal. Their reputations won’t be tarnished nearly as much as if they voted to strike down the law.


A decision not to enforce DOMA would also risk establishing a dangerous precedent. The reason why the administration has enforced the law to date is because that’s the president’s obligation under the Constitution, which says he “shall take Care that the Laws be faithfully executed.” Failing to enforce a duly enacted law could be seen to violate this constitutionally imposed duty and set a terrible example for future presidents to pick and choose which laws they’ll enforce. Would Obama want to empower a President Rubio to decide unilaterally that Obamacare is unconstitutional and refuse to implement it? Refusal to enforce DOMA could even spark impeachment attempts by a Republican House that already smells blood in the water over the IRS scandal.

which very much echoes what I’ve written above.

1 comment… add one
  • PD Shaw

    I’m not sure I’ve followed all of the procedural twists and turns of these cases to have an opinion on which makes the most sense, but as a judicial minimalist, I would just assume both the DOMA and the Prop8 cases be junked as precedent and let the democratic process move forward.

    I particularly find the underlying contempt these cases show for democratic compromise to be ugly. In the Prop 8 case, California law was found to be discriminatory because there was no substantive difference btw/ civil unions and marriage, so the only possible intention for creating civil unions was malicious hate for minorities. So there we are — Californians are haters and South Carolinians are either saints or shrewd enough to realize its all slippery slopes. Same with DOMA, a compromise that allowed the same-sex marriage rights movement to build momentum. In a time when its so difficult to compromise because people would rather deal with the other side’s hidden agendas this line of judicial development sucks eggs.

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