Gay Marriage Arguments: What to Look For This Week

Next week, the Supreme Court will hear oral arguments on two very important gay marriage cases: the legality of California's Proposition 8 defining marriage as between a man and a woman and the Defense of Marriage Act. While the opinions in these controversial cases will likely not be decided until late June, oral arguments offer a chance to see where the Justices stand on the issues before the Court. This piece is part one of a three part series on the case, focusing on what constitutional lawyers refer to as standing.

In order for a person to bring a challenge before the Supreme Court, they must have the right to appear before the Court. According to the Constitution, the Supreme Court is to hear only "cases and controversies," which the Court has interpreted to require the individual suffer a real and individual harm which can be remedied by the court. In other words, if the person defending or challenging a law has not received an actual harm that is somewhat particular to that person or class of persons, they can’t bring a case. The refusal of the Obama and Schwarzenegger administrations to defend DOMA and Prop 8 respectively test the limits of the specialized harm of the respective defendants.

Both Prop 8 and DOMA are represented by unusual defendents. In Hollingsworth v. Perry, after Governor Schwarzenegger refused to defend Prop 8, Protect Marriage organized a defense of the ballot initiative. Similarly, when the Obama administration refused to defend the Defense of Marriage Act in the federal courts, the House Republicans stepped in to defend the bill. And while the House’s rare decision to defend a case before the Supreme Court along with the saga of their lawyer, former solicitor general and Supreme Court super lawyer Paul Clement, received most of the headlines, the neglect of any group of Californian elected officials to defend the bill could spell trouble for Prop 8.

While unprecedented at the federal level, the Supreme Court has weighed in on whether a state legislative branch can intervene when the executive branch refuses to defend established law. In Karcher v. May, the Court held that the representative branch had a right to defend a law which the executive refused. However, the right of private citizens to defend such a law has never been recognized. In fact, in 1997 the Supreme Court held that private groups did not have a right to protect laws which elected officials refuse to defend in Arizonans for Official English v. Arizona.

However, a decision to deny standing to the DOMA defense would arguably be a strike to our constitutional government. It would give the president the power to effectively overturn any laws which she or he disliked by refusing to enforce any challenges against them. Thus, for example, had Mitt Romney won in November he could effectively overturn Obamacare or any other law by refusing to defend it.

In the next segment, I’ll address the issues the judges won’t talk about, but could play a role in deciding the cases.