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Will Justices Opt for ‘Offramps’ in Same-Sex Marriage Cases? Standing Is One of the Issues

Posted Dec 10, 2012 8:41 AM CDT
By Debra Cassens Weiss

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When the U.S. Supreme Court granted cert in two gay-marriage cases Friday, it added another issue for its consideration: whether the parties defending anti-gay-marriage laws have standing.

The standing issue is among several “offramps” available to the court that would make it unnecessary to rule on the broader constitutional issues, the New York Times reports. The Wall Street Journal Law Blog (sub. req.), the Washington Post and SCOTUSblog have stories addressing the standing questions.

One of the cases, United States v. Windsor, challenges the federal Defense of Marriage Act that denies federal benefits to same sex couples who are married under state laws. The Obama administration is no longer defending DOMA. That job has been taken on by House GOP leaders. The Supreme Court is considering whether the lawmakers have standing, and whether a live controversy exists when the Justice Department considers the law to be unconstitutional.

The other case, Hollingsworth v. Perry, is a challenge to a California ballot measure known as Proposition 8, which overturned a state supreme court decision finding a state constitutional right for gays to marry. The challengers hope the Supreme Court will rule that gay couples have a constitutional right to marry. But the court could avoid that broad question, on standing or other grounds.

After a federal judge struck down Proposition 8, California’s governor and attorney general chose not to appeal. Groups that had supported Proposition 8 then stepped in to defend the measure. The Supreme Court is considering whether those proponents have standing.

If the Supreme Court finds the Proposition 8 defenders have standing, the court could still issue a narrow ruling based on the decision in the case by the San Francisco-based 9th U.S. Circuit Court of Appeals. The 9th Circuit held that, once the California Supreme Court granted gays the right to marry, taking away the right violated equal protection guarantees. The 9th Circuit ruling affected only California, the ABA Journal points out in an article by University of California at Irvine law dean Erwin Chemerinsky.

With the cert grants Friday, SCOTUSblog says, "Each side gained the opportunity to make sweeping arguments, for or against [gay] marriages. But the court left itself the option, at least during the current term, of not giving real answers, perhaps because it lacks the authority to do so."

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