Why Standing Matters: Same-Sex Marriage & the Role of the Courts
Is the Supreme Court’s view of the Defense of Marriage Act more powerful than Congress’s? Is its judgment about California’s Proposition 8 mightier than that of the people of California? When does the Court have the power to decide, and why?
In popular accounts of United States v. Windsor and Hollingsworth v. Perry, questions of this sort have generally been muscled out by attention to the Justices’ political and moral beliefs about same-sex marriage. There was a vague awareness that something technical called “standing” might impede the Justices from doing justice. But it was widely assumed that the Supreme Court ought to decide whether same-sex couples have a right to marry—that it was politically and constitutionally legitimate for it to decide in a way that bound the whole country. To the extent that it was considered at all, standing was generally felt to be an obstacle on the road to doing justice.