Wednesday, January 23, 2013
When the United States Supreme Court granted certiorari in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing.
This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional). In the case of Prop 8, the trial proceeded with the intervenors, who lost. In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.
This is an unusual, if not unique, state of affairs. Usual discussions of Article III standing focus on the plaintiffs rather than losing defendants who are now appellants or petitioners.
All of the posts - - - seven! - - - are worth a read, but perhaps most interesting is Lederman's discussion of the outcome of any Court decision denying standing in the Prop 8 case.