Yesterday, the Supreme Court handed two significant defeats to opponents of LGBT equality: United States v. Windsor, discussed yesterday, and Hollingsworth v. Perry. By all accounts, Windsor is far and away the more important case. It more or less establishes that the gender of married parties, and whether married parties are or are not the same gender, is off-limits when the federal government is decided how to parse out marital benefits. That is a huge triumph for marriage equality (though, as discussed in yesterday’s post, the scale of the triumph is somewhat diminished by weak federalism).
Hollingsworth, on the other hand, technically says nothing at all about gay marriage per se. It allows no new marriages, it creates no new rights, it recognizes no existence gay marriages. It answers none of the questions that both parties to the case wanted answered, the most important of which would have been whether or not the state constitution of California, or the charter of California, forbids the denial of marriage benefits to same-sex couples. In fact, it answers a question that neither party asked at all, that is, whether or not the opponents of gay marriage had the right to be challenging the case at all. Hollingsworth speaks to the “standing” of the appealing parties, which neither party actually seriously challenged at any stage prior to the Supreme Court appeal.
“Standing” is a complicated thing, and I don’t mean that it’s complicated for the laymen, I mean that it’s complicated. What’s important for our purposes is that, if you want to sue the government over a law, you have to show that you were actually injured by that law. This analysis is usually best suited to criminal defendants being convicted for violating laws that they think are unConstitutional. Hollingsworth is interesting in that it is about the standing of the plaintiffs.
The doctrine of standing plays two important functions. Firstly, it prevents people with no stake in a particular law or incident from getting the advantage of court intervention – for example, imagine the harm to justice that would be done if, instead of letting the victims of racial discrimination sue to defeat discriminatory laws, the Klu Klux Klan were allowed to take up the case against racial discrimination, and just how good a job they would do of it. Secondly, it denies the courts the opportunity to usurp the power of legislators by taking the slightest complaint and turn it into a judicial referendum. Imagine, for example, a court that was just itching for an opportunity to strike down a mandatory minimum sentencing law, since it just steps on the toes of judges and juries. So, rather than going to someone sentences under such a law, they go to the judge’s neighbor Joe, who is just personally morally opposed to mandatory minimum sentencing, lets him sue, and takes his case. Joe has become an opportunity for a judge to strike down a law. Standing requirements forbid either scenario – the Klu Klux Klan presumably does not have standing in its case, and Joe does not have standing in his, since justice is properly left to truly aggrieved parties.
But for atheists and skeptics like myself, the word “standing” sticks in your craw because of a case called Elk Grove Unified School District v. Newdow. That was the case in which Michael Newdow, father of a daughter who had been punished for refusing to recite the Pledge of Allegiance because of its bizarre recently-added theistic commitments, was refused the opportunity to challenge Congress’s intrusion into the Pledge not because his case was bad, not because he was wrong about the Constitution or about the separation of church and state, but because he lacked “standing.”
Denial of “standing” is becoming an increasingly esoteric legal doctrine that is beginning to strike me as a judicial substitute for “we don’t really want to hear your case.” The Supreme Court had a prime opportunity in Hollingsworth to and a sounding defeat to the enemies of equality, but instead, it took the easy way out on a truly ambiguous question of standing. Like Windsor, Hollingsworth was 5-4, but Hollingsworth wasn’t the 5-4 you’d think. Where Windsor was divided along the traditional conservative bloc vs. Kennedy/liberal block lines we’ve come to know and love, Hollingsworth was opposed by the unusual combination of Alito, Thomas (Bush appointees), Sotomayor (an Obama appointee), and Kennedy. Liberal-conservative splits are to be expected. Ragtag teams of liberals, conservatives, and moderates all coming together to oppose are rather unexpected.
The dissent is just as concerned as I am that the Supreme Court took the easy way out in Hollingsworth, and worse, that the Court is making true justice entirely too inaccessible, that future Supreme Courts now have the superweapon of an unlimited standing doctrine to dismiss any case without having to answer the hard questions. To quote the dissent:
The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century…. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.
The troubling question raised by Hollingsworth is, who’s next to be denied Court access because of “standing?” Michael Newdow deserved to have his case heard, but the courts above him had created an insulating protection that lets them get rid of difficult cases without committing themselves to potentially politically unpalatable consequences. That is how Hollingsworth sounds to me. It makes me think, “first they came for the gay marriage opponents, but I said nothing, because I was not against gay marriage….” What if, some day, I want to petition the highest courts in the land to protect me from some federal or state invasion of my Constitutional protections, and I lack standing because my case is politically undesireable? Then I will be like Michael Newdow, and like the opponents of gay marriage: unpopular, unpalatable, and unprotected by the courts.