Rolling The Dice

You all probably have heard by now that the Supreme Court is going to hear a couple of cases on marriage equality, I always dread when courts decide on human rights because it is a crap shoot. It can go either way and no one can say how it will turn out.

It might turn out in a way that most people don’t expect, they can copout and side step the issues and still leave marriage equality in limbo. That is where I’m placing my bets.

Supreme Court Takes Marriage Cases, But Leaves Itself an Out
Gay City News
Dec. 7, 2012

BY ARTHUR S. LEONARD | The Supreme Court announced on December 7 that it would review the Ninth Circuit’s Proposition 8 ruling and the New York-based Second Circuit’s ruling on the constitutionality of the Defense of Marriage Act (DOMA), but in both cases it indicated it would hear argument about whether the petitioners had standing to seek review of the decisions.
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But the high court will revisit the question whether the Proponents have standing to represent the State of California in defending Prop 8. If the Court rules that they did not have standing to appeal Walker’s ruling as a matter of federal law, that would mean that neither the Supreme Court nor the Ninth Circuit would have jurisdiction to decide their appeal. In that event, Walker’s ruling, which was not appealed by any of the named defendants in the case –– such as the governor or attorney general –– would be the final ruling, binding in the state of California. Same-sex couples would once again have a right to marry there.

The other case they are hearing is the case that challenges the Defense of Marriage Act (DOMA) and in that case the Department of Justice found that the law could not be defended and would not appeal the lower court’s decision. The House of Representatives controlled by the Republicans picked up the baton to appeal the lower court decision.

In both the DOMA and Prop cases, then, the Supreme Court added questions to those posed by the petitioners, signaling the possibility it could find it does not have jurisdiction to rule on the merits in either. Under the Constitution, the Court is limited to deciding actual “cases and controversies,” which it has construed to mean that only a party with a distinct personal stake in the outcome of a case has “standing” to bring their case to federal court. Plaintiffs must have standing to initiate a lawsuit, and appellants must have standing to appeal a trial court’s ruling. If the petitioners in one or both of these cases don’t have standing, then that case is not a real “case or controversy” for constitutional purposes and so is outside the court’s jurisdiction.

As a result, the court’s December 7 actions raise all sorts of interesting questions that will probably keep scholars and commentators busy speculating from now until whenever the cases are disposed of. If the court finds that none of the petitioners have standing, it will dismiss these appeals. And, a ruling on standing also affects the jurisdiction of the courts of appeals. Presumably, a party that does not have standing to appeal to the Supreme Court also lacks standing to appeal a trial court’s ruling to a circuit court of appeals.

This means that instead of hearing the cases the Supreme Court will first hear arguments on whether they have a right to appeal the cases. In the California case the American Foundation for Equal Rights (AFER) will have to show that they have a legal right to appeal the lower court decision and in the DOMA case the House of Representatives has a right to appeal the case if the DOJ doesn’t appeal the case.

So we have two chances to win, the first is if the court finds that they don’t have a legal standing to appeal the cases, we win, the lower court rulings stand. If the Supreme Court rules that they do having standing to appeal the cases then cases will be heard by the Supreme Court and we will be back to the “crap shoot.”

This is what I think will happen; the Supreme Court will find that the American Foundation for Equal Rights does not have legal standing and marriage equality is legal in California and the court will hear the case on DOMA. That the Supreme Court will strike down DOMA ruling that it is a “State’s Right” to determine who can marry in their state and the federal government must abide by the state decisions. The Supreme Court will not make marriage equality the law of the land, neatly coping out of making a landmark civil rights ruling.