15 Pages Posted: 13 Jan 2013 Last revised: 6 Mar 2013

Date Written: January 12, 2013

Abstract

Two fundamental standing problems plague Proposition 8’s proponents and the Bipartisan Legal Advisory Group (BLAG) in the marriage cases currently before the U.S. Supreme Court. First is the Article III double-dipping problem, to which this Essay’s title refers. This problem arises because those parties purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws. Yet the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional. To permit this Janus-faced commitment to both sides of the cases would render the concept of the government interest incoherent for Article III standing purposes. The second problem is that Proposition 8’s proponents and BLAG both lack the enforcement powers that give rise to the government’s “direct stake” needed for standing in federal court.