Two same-sex marriage cases were argued at the U.S. Supreme Court during the last week of March. One, United States v. Windsor, deals with the federal Defense of Marriage Act (DOMA), and challenges congressional authority to legislate on the subject of marriage and to deprive citizens of marital rights and privileges where same-sex marriages are authorized by state law. The Proposition 8 case, Hollingsworth v. Perry, deals with whether a state can prohibit same-sex marriages under the Equal Protection and Due Process clauses of the federal Constitution. The California Supreme Court had found same-sex partners had the right to marry before Proposition 8 was adopted.

Both cases include interesting procedural issues dealing with standing. In the DOMA case, the Obama administration won’t defend the law and the appeal is being prosecuted by a group of House Republicans. In the Proposition 8 case, California won’t defend the enactment and proponents of the proposition have done so, albeit with a certified ruling from the California Supreme Court on their entitlement under state law to do so. Both cases present questions relating to whether there is a "case or controversy" for purposes of Article III of the federal Constitution.

Some commentators believe that the Proposition 8 case may be dismissed on standing grounds, but the DOMA case will not. Despite its position on constitutionality, the U.S. continues to enforce DOMA and demands payment of estate taxes, which may not be due if one of the parties can benefit from a spousal transfer. Moreover, it is one thing to enforce rights where they have been granted by state law, another to mandate it as a matter of federal constitutional compulsion. Stated differently, a majority of the Supreme Court may combine the demise of DOMA — requiring the federal government to honor the decisions of states where same-sex marriages are permitted — with some ruling that avoids a mandate that the states must permit same-sex marriages.

The Supreme Court has never granted standing to the proponent of a ballot initiative. And as the chief justice suggested at arguments, the states should not be able to control standing in federal courts. The problem in the Proposition 8 case is that the proponents, not the state, appealed the district court’s opinion and sought review of the court of appeals’ affirmance. If the Supreme Court finds no standing, it could do several things: dismiss the appeal because certiorari was improvidently granted, reverse the court of appeals’ determination on standing or vacate its opinion, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), in any event leaving the district court’s permanent injunction of Proposition 8 in force. Perry v. Schwarzenegger, 704 F. Supp. 921 (N.D. Cal. 2010).

In an editorial last spring, we urged the court to avoid consideration of an analogous procedural wrinkle, based on a statute, to avoid addressing the constitutionality of the Affordable Care Act. "Jurisdictional Wrinkle to Health Care Ruling," April 30, 2012. There, as here, the administration did not try to avoid a decision on the merits. There, as here, the public seemed to desire resolution of a burning and controversial issue of national importance.

But unlike the issue of whether the ACA dealt with a tax that had to be paid before a challenge could be entertained, here we deal with more traditional questions of standing: that is, whether members of Congress have the power to defend the constitutionality of one of its enactments and whether citizen proponents of a public referendum can seek to defend it when the government will not. These questions present important jurisprudential issues and cannot be bypassed without serious concern.