Right, Left, and the Standing Issues in the Gay Marriage Cases

Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth v. Perry, California Proposition 8 was defended by a group of private citizens, because the state government chose not to support it. There were serious questions about whether both the BLAG and the Prop 8 supporters had a significant enough stake in the case to qualify for standing under Supreme Court precedent. Ultimately, a 6-3 majority of the Court ruled that BLAG did have standing [Clarification - 5 of them ruled only that BLAG could present arguments defending the interests of the federal government, without reaching the issue of whether BLAG had standing in its own right], while a 5-4 majority concluded that the Prop 8 supporters did not.

Until recently, opinion on constitutional standing issues tended to divide along predictable ideological lines. Conservative jurists usually supported narrow notions of standing, seeking to limit the range of parties who could get into federal court, while liberals supported broad ones. But as I previously pointed out here and here, these ideological alignments have begun to break down over the last few years.

Today’s decisions continue that trend. In the DOMA case, the four liberal justices and Justice Kennedy, the most moderate conservative, concluded that the BLAG has standing [but see update below]. But so too did the conservative Justice Alito. Conservative justices Roberts, Thomas, and Scalia dissented. In Hollingsworth, the distribution of votes was even less ideological. The majority opinion written by the conservative Chief Justice Roberts was joined by liberals Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, and by the conservative Scalia. Justice Kennedy’s dissent, arguing that the Prop 8 supporters did have standing, was joined by conservatives Clarence Thomas and Samuel Alito; but also by liberal Sonia Sotomayor.

In sum, it’s clear that standing issues in these cases did not break down along ideological lines. Interestingly, the conservative Justice Alito voted in favor of standing in both cases, and wrote a separate opinion outlining his position on the subject in Windsor.

UPDATE: I was not as clear as I should have been about what the majority in the DOMA case said about BLAG’s standing. The five justices who voted to strike down Section 3 of DOMA ruled only that BLAG could present arguments defending the interests of the federal government (which chose not to defend the constitutionality of Section 3 itself, but according to the majority still had a “stake” in the case), without ruling on the issue of whether BLAG had standing in its own right. Only Justice Alito considered the latter issue. I apologize for the mistake, and thank commenters here and on Twitter for pointing it out. It’s worth noting that even the majority’s limited acceptance of BLAG’s participation in the case is potentially significant.