12:41 PM :: Stephen (contact)

On the Shoulders of Giants: I've received a good deal of help on the question of standing to challenge San Francisco's gay marriages (discussed below). Former roommate and blogger extraordinaire Steve Wu e-mails:

Coincidentally a couple of us were talking about this today. Our conclusion is that (1) to the extent that they have standing, they probably have standing under state law, not federal law; (2) if state standing is more capacious than federal law, then it is unlikely that they will be able to remove or appeal to federal court due to standing problems.

Steve subsequently pointed out that state law is more flexible in this case, as Jack Ayer writes:

Although California does have a standing requirement/real party in interest, there is an exception for questions of "public right" and "public duties" that allow a plaintiff seeking a writ of mandamus to sue as long as the plaintiff shows s/he "is interested as a citizen in having the laws executed and the duty in question enforced." Green v. Obledo, 29 Cal.3d 126, 144 (1981). Taxpayers can sue to prevent a public official from waste or illegal expenditure of public funds. The plaintiff must be a resident of the state, city, or county involved, and assessed for and liable to pay taxes (or have paid tax) to the public entity within the past year. California Code of Civil Procedure sec. 526a See generally Brown & Weil, California Practice Guide: Civil Procedure Before Trial para. 2:66-2:70 (The Rutter Group 2003).

And James Grimmelmann (who also taught my CS 121 section!) emails to note that the briefs in the case rely on Section 526a in their discussion of standing.

The question remains, however, how these issues would be resolved in a state with stronger standing requirements than California. As Steve writes, similar issues could arise in the context of the proposed Federal Marriage Amendment, which reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

There's been a good deal of controversy whether this amendment would block civil unions, but it's not even clear what would happen with full-fledged gay marriages. If the legislature of a state like Massachusetts chose to endorse gay marriages, and if the Cambridge city clerks begain issuing licenses for them, who could sue to make them stop? The licenses might be held to be void when challenged (in cases of custody, inheritance, etc.), and businesses might be able to avoid paying marital benefits to gay couples, but the practice itself could presumably continue. And I doubt that any amendment would include a "qui tam" clause that allows individuals to sue on the government's behalf, a practice that is well-known for letting whistleblowers sue those defrauding the federal government (though not, unfortunately, in cases of tax fraud).

(In response to this suggestion, Steve notes that with an enforcement clause in the amendment--e.g., "Congress shall have power to enforce this article by appropriate legislation"--Congress could create its own qui tam provision. Such a provision would then bypass any Article III requirements of standing under Vermont Agency of Natural Resources v. U.S. ex rel. Stevens.)

It's interesting to consider what would happen, though, if the FMA passed without such enforcing legislation and a state legislature did choose to disobey its terms. As in San Francisco, there would be a large number of couples who had been "married" and who might be socially recognized in their communities as having this status. They couldn't use it as an argument in court, to claim visitation rights in hospitals or custody of adoptive children, but there would be no legal process for voiding the "marriage" entirely. In some sense, that's why Newsom's move is such a brilliant strategy by those favoring gay marriages: it moves the debate away from abstract principles and refocuses it on individual couples--those whose commitments to each other must be broken in order for the law to be upheld.