The standing issues in the gay marriage cases have received
some attention from Mike Ramsey, Neil Devins and Tara Grove, and Linda
Greenhouse. Mike writes mainly from an
originalist perspective, whereas the other authors adopt more eclectic
approaches. While I haven’t studied the
gay marriage cases closely, let me here give some preliminary thoughts from an
originalist perspective, focusing on the DOMA case. Needless to say, the correct answers based on
current law are likely to differ from the originalist answers.
1. From an originalist perspective, standing doctrine is a
mess. We simply do not know whether
standing is consistent with the original meaning. Bob Pushaw argues that standing is largely not
constitutionally required; Caleb Nelson and Ann Woolhander suggest it might
be. If it is not constitutionally
required, then most of these issues go away.
So let’s assume it is. But even
if standing is required, there are still many open issues from an originalist
perspective, such as those involving executive power.
2. It is probably the case that the executive power includes
the power to enforce the law and to defend the executive’s actions in
court.
3. In the DOMA case, the Obama Administration enforced the
law, but refused to defend the law in court.
4. There are several plausible positions on executive power –
I say plausible here, because determining the correct position from an
originalist perspective is quite difficult and certainly not possible in a blog
post.
5. The Obama Administration could have not enforced the law
on the grounds it was unconstitutional.
It chose, however, to enforce it (by requiring Edith Windsor to pay an
estate tax on an estate she inherited from her same sex spouse that would not
have been required if their marriage had been an opposite sex one).
6. The Obama Administration’s enforcement of the law creates
standing. There is a concrete dispute
between Edith Windsor and the federal government. The Obama Administration’s refusal to defend
the law in court, though, creates additional issues.
7. One possibility is that the Obama Administration simply
loses. If one does not defend oneself in
court, the court is authorized to decide the case against you in a pretty
summary way.
8. Another possibility is that the Obama Administration can
choose to assign the task of defending the statute to another group, such as
the House or BLAG. But that assignment would be
of the power to file the brief of the
United States. And the Obama
Administration would ideally review and approve the brief, even though it would
not have to agree with it. (This alternative
would only be problematic if filing such a brief is an action of an executive
official and the executive lacked constitutional or statutory power to appoint
the person filing the brief – complicated issues here, which I am omitting.)
9. Devins and Grove
suggest that the Court can appoint an amicus to defend the law. I do not believe that an amicus can act as
the proper defender of the law. An
amicus is simply a private party. The
defender of the law is acting as a representative of the United States. Assuming that the Court can appoint an
amicus, the amicus cannot act as the defender of the law for the United States
without executive branch review. At the
least, the Obama Administration must have the power to review and potentially
control the amicus that is filing the brief of the United States.
10. To conclude: I
think the House can defend the law, without executive approval, only if there is
no significant standing doctrine. If
there is such a doctrine, then the Obama Administration must have the power to
control the actions of any amicus or attorney who is defending the law as a
representative of the executive branch. Since the Obama Administration does not seem to have that authority, the defense of the law by the House (actually BLAG) is problematic.
(Cross posted at the Liberty Law Blog)
Posted at 4:03 PM