What the hell is standing? I thought this was a gay marriage case!

The Supreme Court heard the first day of oral arguments in the case of Hollingsworth v. Perry today. It’s a landmark case, of course, and most Americans have strong opinions on the underlying issues. I read the entire transcript of today’s oral arguments, and I was disappointed that most of what was said was hopelessly confusing. That’s a shame, because these decisions affect all of us. We should at least be able to understand what happened and why it matters.

I'd like to identify the parties, trace the history of the case, and explain the key issues.

A case is born

The California Family Code defined marriage as “a personal relation arising out of a civil contract between a man and a woman.” Cal. Fam. Code § 300(a). The City of San Francisco had begun to issue marriage licenses to same-sex couples anyway (including Rosie O’Donnell and her partner). California ordered the City to enforce the law as written, and some same-sex couples were denied marriage licenses as a result.

The couples sued, and the California Supreme Court held that the state law as written—and the ban against same-sex marriage—violated the couples’ Constitutional rights. In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008).

Enter Proposition 8

Traditionally, of course, state laws are conceived and born in the statehouse. Your state legislature proposes a bill and votes on it. If the bill passes, it becomes state law. (Are you singing that song from “Schoolhouse Rock” yet?)

Citizens are sometimes frustrated their hoped-for laws take forever to become law—if they ever make it that far—and that the law as passed bears little resemblance to the original proposal. In some states—and in many countries—voters can petition to have a proposed law placed directly onto the ballot. If enough voters say “yes” to the initiative, it becomes law.

Proposition 8, which limited marriage to one man, one woman, was on the ballot in California in November 2008. Voters passed it by a margin of 52-48 percent, in effect overturning In re Marriage Cases and making same-sex marriage illegal in California again.

Who are Hollingsworth and Perry?

Kristin Perry and her partner Sandra Stier applied for a marriage license in California. Pursuant to state law, including Proposition 8, the Alameda County Clerk-Registrar denied them. They and another same-sex couple sued their respective county clerks, along with then-Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and other state officials.

The “Hollingsworth” part is a little unusual. Normally, the case would be “Perry v. Brown” (the attorney general) or “Perry v. Schwarzenegger.” Oddly, both Gov. Schwarzenegger and Atty. Gen. Brown declined to stand as defendants in the case. Instead, Dennis Hollingsworth of the group ProtectMarriage.com asked the court to let him represent the state’s interest in protecting traditional marriage. The court allowed Hollingsworth to intervene, and so the case went to federal court, where Hollingsworth lost. The 9th Circuit Court of Appeals affirmed—holding that Proposition 8 was unconstitutional—and so Hollingsworth appealed to the U.S. Supreme Court, where Perry v. Hollingsworth is before us today.

What is standing?

Article III, §2 of the U.S. Constitution sets forth the requirements necessary for a case to be heard by a federal court. Among these requirements is standing.

Before the U.S. Supreme Court can hear a case at all, the parties must show that they have a personal interest in the outcome in the case—that they’ve got a dog in the fight, some skin in the game. Often, standing is not at issue. If a convicted murderer is suing the State of Alabama for failing to give him a fair trial, for example, the interests are obvious. The accused wants a new trial so that he can try to win his personal freedom, while the State wants their trial result to be upheld so they can exact justice on behalf of their citizens.

In Perry v. Hollingsworth, however, whether Hollingsworth has standing is disputed. Kristin Perry was herself denied a marriage license, so it’s easy to see how she has standing: She was personally affected by the marriage license denial, and so she has a stake in the outcome of this case.

Does Hollingsworth have the same personal interest here? In other words, does he personally have the right to defend California’s Proposition 8—even when the state itself declined to do so? He argues that he does—his group was instrumental in passing Proposition 8 in the first place, and so he is occupying his rightful place in speaking for the state. Perry is arguing that this is not enough: He has not suffered a personal, immediate injury from the state’s action, and therefore does not have standing—the right to a redress of his grievances. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

If the parties don’t have standing, the Court will decide that the case is not properly before it. The case won’t make it past this procedural hurdle, and the Court will not decide on the merits of the case. Standing, here, is half the battle.

So what are the merits of the case?

Based on the signs of the protestors outside the Supreme Court building and the comments on Facebook, you’d think that the Court is answering the question of whether all Americans can marry a member of the same sex. They’re not, although that will be the effect of their decision.

Again, based on Article III, a federal court cannot answer “political questions”—it must answer the specific federal question before it. In addition to the standing question discussed above, the Court will decide:

“Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the state of California from defining marriage as the union of a man and a woman.”

In a way, this is a narrow question: Can the voters of a state decide that it’s illegal for same-sex couples to marry, or does this violate the Constitutional rights of same-sex couples?

Here’s the text of the 14th Amendment. Does it extend to same-sex marriage? What do you think?

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. Amend. XIV, § 1