A wildcard in the two landmark gay marriage cases before the Supreme Court this week is that the justices could rule on the question of 'standing,' not the core issue of whether Prop. 8 and DOMA violate the rights of same-sex couples.
Sometimes huge cases at the US Supreme Court end in a whimper rather than a bang.
Despite the crescendo of anticipation surrounding the looming showdown over same-sex marriage at the high court this week, it is possible the justices could decide the controversial cases without ever reaching the core issue of whether Proposition 8 in California and the federal Defense of Marriage Act (DOMA) violate the rights of same-sex couples.
Before the justices can take up those fundamental questions, they must first agree that the parties before them have the necessary legal standing to argue the cases, and that the court, itself, has jurisdiction to decide them.
It is a unique feature of the litigation in the Prop. 8 and DOMA cases that the government officials who are charged with the responsibility of defending the constitutionality of challenged laws have opted in both cases not to do so.
In the DOMA case, President Obama and Attorney General Eric Holder decided to stop defending the federal statute in court after concluding that it was unconstitutional. But the administration agreed to continue enforcing DOMA until a definitive ruling in the courts. DOMA bars same-sex spouses from receiving more than 1,100 federal marriage benefits available to opposite-sex spouses.
Similarly, the governor and attorney general of California declined to defend the constitutionality of Proposition 8, the 2008 ballot initiative banning gay marriage in that state. Nonetheless, California officials continued to enforce the constitutional amendment by refusing to issue any new marriage licenses to same-sex couples until a final court ruling on the issue.
There is no question about the legal standing of same-sex couples to file lawsuits complaining that they are being treated as second-class citizens under DOMA and Proposition 8.
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