Understanding standing: The Court’s Article III questions in the same-sex marriage cases (VII)
On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed tomorrow, on January 22.
If the Court were to hold that the petitioners in Hollingsworth v. Perry – the Proposition 8 initiative sponsors — do not have Article III standing to appeal, what then? What would become of the judgments below, and of Proposition 8 more broadly?
The Supreme Court presumably would reverse and vacate the judgment of the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8 proponents were also the only parties to appeal to that court from the district court judgment. If that were to happen, the Ninth Circuit’s opinion would no longer have precedential effect that would govern future cases challenging California’s (or any other state’s) refusal to recognize same-sex marriages. (In any event, it is likely the court of appeals will next consider the issue of same-sex marriage not in a California case but instead in a case coming up from Nevada. Because the prohibition in Nevada law does not reverse a previous right to same-sex marriage in that state, the rationale of the Ninth Circuit’s opinion in Perry would not be directly applicable to the Nevada case, regardless of whether the Perry decision retains any precedential value. That Nevada case will instead require the court to decide whether the Fourteenth Amendment permits Nevada to afford same-sex couples all of the benefits and responsibilities of marriage (under the moniker of “domestic partnerships”), but to deny them the status of state-sanctioned “marriage” itself.)
