May 11, 2004
Standing and the FMA
by Nick Morgan
I suppose it goes without saying that not everyone looks forward to May 17th in Massachusetts:
Conservative groups filed a motion in federal court Monday seeking to block the legalization of gay marriage (search) next week, arguing that the state's highest court violated the U.S. Constitution with its landmark November ruling . . . .
Mat Staver, president and general counsel of Liberty Counsel, issued a statement Monday saying "the federal courts are obligated to step in to ensure that Massachusetts is following the basic principle of separation of powers that is vital to our very system of law and government."
Matto Ichiban has a couple of great posts explaining the host of reasons why there probably isn't a shred of federal jurisdiction over the matter. This point of Matto's was especially interesting:
"[I]t is questionable whether these groups have standing to challence the SJC ruling. None of them are particularly aggreived by the ruling since they are not denied anything they have a right to, other than having government operate within the bounds of law. The Supreme Court has ruled that this is insufficient. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Allen v. Wright, 468 U.S. 737 (1984).
Both cases, as Matto notes, rejected standing when no more was alleged than an undifferentiated desire to see the government act lawfully. This presents a very interesting question in the gay marriage context: could there ever be federal standing to challenge government action conferring the benefits of marriage on same-sex couples? Suppose, for instance, that the backlash against gay marriage grows more intense in the coming years, and for whatever reason a Federal Marriage Amendment to the Constitution is adopted, prohibiting states from recognizing same-sex marriage. Who could challenge a disobedient state in federal court? The mere fact of watching one's state disobey the federal constitution in giving benefits to same-sex couples is not likely at all to be an "injury-in-fact." Consider the standing test put forth in Allen v. Wright (approved by Lujan, but placed in question by FEC v. Akins, 524 US 11 (1998)):
A plaintiff must allege personal injury fairly traceable to the defendant's unlawful conduct and likely to be redressed by the requested relief . . . . The injury alleged must be . . . "distinct and palpable," . . . and not "abstract" or "conjectural" or "hypothetical" . . . . [468 US at 751]
In Allen, mothers of school children alleged that "they are harmed directly by the mere fact of Government financial aid [contrary to IRS regulations] to discriminatory private schools" , but the Court said that "might be a claim simply to have the Government avoid the violation of law" which is insufficient for standing. Id at 752-55.
Lujan addressed a provision of the Endangered Species Act requiring federal agencies to consult with the Secretary of the Interior to make sure the agency's actions would not jeopardize the existence of endangered species. A subsequent promulgation limited this requirement to agency actions taken in the United States, so wildlife enthusiasts sued for a declaration that this promulgation should extend to international actions. Even though plaintiffs had previously observed foreign habitats of endangered species, the Court held that they had no standing (no "injury"):
It goes beyond the limit . . . and into pure speculation and fantasy to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection. [Id at 567.]
. . . .
[A] plaintiff raising only a generally available grievance about government--claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large--does not state an Article III case or controversy. [Id at 573-74.]
Although traditional family acitvists might feel that they are more "injured" by gay marriage than the average citizen, this surely isn't enough after Lujan, where wildlife enthusiasts had raised only "a generally available grievance."
Under current law, the concrete and material nature of an injury required for standing is simply not the kind of injury that traditional marriage advocates can allege, so I don't see how laws conferring gay marriage--even if they disobey the federal constitution--could be challenged in federal court. Unless, of course, an FMA explicitly granted jurisdiction to Article III courts, or created a special administrative agency to deal with its enforcement.
May 11, 2004 05:36 PM
I don't suppose either you or Matt could pin-cite exactly what in Lujan supports that view?
The case--which I agree with you will probably not be set aside lightly, but hurled with great force--does seem distinguishable from Lujan. For one thing, we presume that the conservative group has some people who live in Massachusetts, or at least a state in which the Massachusetts ruling might risk being incorporated through Full Faith and Credit. That alone would get them nearer to standing than the plaintiffs in Lujan. (Yes, those plaintiffs had 'previously studied endangered species.' They had not, however, studied the endangered species in question in the location they were in.)
Under current law, the concrete and material nature of an injury required for standing is simply not the kind of injury that traditional marriage advocates can allege, so I don't see how laws conferring gay marriage--even if they disobey the federal constitution--could be challenged in federal court.
I would expect that anyone who expects to have to pay any federal benefits to a homosexual couple, or indeed is required to change the tax status of their employees, might immediately make a standing requirement. I'm dubious as to whether they get jurisdiction, but standing doesn't seem an overwhelming issue.
Worth looking at FRIENDS OF THE EARTH, INC., et al. v. LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC., which clarifies this situation somewhat:
In Lujan v. Defenders of Wildlife, we held that, to satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. (citations omitted)
So long as the group has a single member that would have to provide some benefit to a homosexual couple on the basis of their getting married--which is what this whole thing is about, isn't it?--standing should be very little issue.
Not quite there, I think. Yes, these groups live in Massachusetts, but are they really more aggreived than any other citizen? Mere desire to see the law changed doesn't count.
Lujan stands for the point that broad, sweeping standing, even authorized by Congress, will not be sufficient under Article III. Geographical location is relevant, but only if there is a relevant cognizable harm, such as seeing the beauty of endangered species. Here, what is the harm? The existence of same-sex married couples doesn't seem very similar to traditional common law harms, and I doubt there is a constitutional or statutory harm these groups can point to. It is at least questionable whether this challenge would pass a strict standing requirement.
Granting benefits to same-sex couples doesn't seem like a plausible claim to standing. Federal benefits are barred by the federal DOMA, and furthermore taxpayer standing is not sufficient. Valley Forge College v. Americans United. State taxpayer standing would likewise seem insufficient to grant standing in a federal court.
Standing is a mushy doctrine, and I think it plausible that standing would be denied here, though this is never certain.
Tony, what do you mean by "provide a federal benefit"? In my scenario, in which gay marriage is prohibited by the federal constitution, I don't see how an employer or tax payer would be providing any federal benefit to same sex couples (but I don't know squat about tax, so I'm asking in earnest here).
Your block quote says just what my quote of Allen said: it's the three part test, plus a bit that says if members would ordinarily have standing then their group might have standing, but that begs the question about providing benefits. Taxpayer standing, by the way, is as a general rule very, very unlikely.
And I don't know why you ask for a pincite when I already provided one. Sure, the facts of Lujan are distinguishable, but it is settled doctrine that an undifferentiated interest in seeing the government obey the law obeyed is not sufficient for standing. I'm confident that Lujan would have come out the same if plaintiffs were concerend about agency activities in their own state regarding animals they had once seen but had no concrete plans to revisit (those were the material facts, location was not as important).
But if by "provide benefit" you mean more than "fill in some form differently" or "have one's taxes used to support same sex marriages" then I'm all ears.
David Gil has some interesting thoughts:
I think that Congress could, as a matter of law, grant standing or create criminal penalties for the violation of the prohibition by state officialas. And there are people who might have standing to challenge gay marriage: spouses in gay marriages. A challenge to the legality of a marriage contrary to an FMA could well be made by someone in a divorce case (in, say, a community-property state) or by someone who is in a gay marriage but wants to marry someone of the opposite sex.
Criminal penalties against state officials might run into commandeering problems (but I don't remember the law), and congressionally granted standing, if we taken Lujan and Allen seriously, is not an available end-run around Article III, but FEC v. Akins might suggest that the standing analysis is somewhat different when Congress wants there to be standng.
The rest of David's points, I think, are correct. People who are in a same sex marriage would eventually have occassion to challenge the law, and there may be interstate issues that would bring it up (though I don't really know much about that, so I'll leave it as is).
Along with David's points I think the most likely place such a marriage would be challenged is in probate cases. Somebody in same-sex marriage will die without a will and people who would stand to inherit if the marriage is invalid will seek to challenge the marriage. It seems like most of the case law concerning invalidating marriages has to do with such situations.
Of course a FMA could include some enforcability provisions, like giving any citizen standing to challenge a same-sex marriage in federal court (or more likely giving Congress the ability to give citizens standing).
First, I agree that inheritance Qs would easily give standing to the competing beneficiaries. (In fact, in an interesting tangent on same-sex marriage, a Kansas case involved a man who challenged his father's marriage to his new wife, who was transgendered/male-to-female. Several other courts have grappled with how to classify the transgendered for various gender-specific laws.)
Second, consider an employer that had contractually committed to giving benefits to employees and spouses/immediate family. That employer faces concrete costs, supporting standing without relying on the government-benefits/taxpayer-standing route.
I think you guys are reading the concept of taxpayer standing much too broadly. The taxpayer standing doctrine only holds for undifferentiated expenditures, e.g. those that come out of the general public budget. The plaintiffs in Valley Forge had no concrete connection to the decision other than being taxpayers.
Nonetheless, the moment that an individual employer has to do something--such as withhold a greater portion of salary, for instance--the taxpayer standing problem goes away, because it's now a particularized grievance. I'll admit that I forgot about the FMA, so it would have to be a state income tax, not a federal one, but that in and of itself would get you there under Lujan. Also, remember that all benefits gained from marriage and required by state and federal law aren't merely pecuniary: medical leave, anyone?
It's a bit silly for anyone to argue simultaneously that marriage is the recognition by government and society of a number of tangible benefits--i.e. civil, not religious marriage--and then argue that no harm could arise that would grant standing. If the civic group is even minimally competent, they've covered this.
"Just Me" is also correct--if the group contains a single employer that would have to pay any benefit that is contractually offered to spouses (and has an employee who has stated an intention of getting married), and whose legal interpretation of 'spouse' would now be altered through Goodridge, you're there.
Tony, medical leave is a good point. I don't know about withholding, though, because I don't see how that "injures" the employer.
But about this particular suit by civic groups: am I missing something? Do some of them complain about giving medical leave benefits and the like? The whole point of standing is that you can't adjudicate someone else's claims.
I agree with Tony that there are many cases where the recongition of marriage could have direct consequences on someone else and thus give standing.
As for this particular suit by the Liberty Counsel, I noticed something interesting. In order to argue that the Guarantee Clause is justiciable they seize upon some dicta from the majority opinion in New York v. United States where J. O'Connor cites a few cases that support the contention that there might be circumstances under which a court might consider claims under that clause. One of those cases cited was Forsyth v. Hammond, an 1897 case which seems to very directly deny their claims that this is a violation of the Guarantee Clause.
I don't know about withholding, though, because I don't see how that "injures" the employer.
Actually, I think I have that the wrong way around: you withhold less of a married person's income than an unmarried one's, don't you? The argument otherwise would go: take-home pay is actually what incentivises employees; I have an employee who will now demand more take-home pay. But again, I think I did my sums wrong. ;)
But note that the size of the injury is immaterial so long as it's not purely speculative: having to adjust computer systems to deal with same-sex couples might make it.
The whole point of standing is that you can't adjudicate someone else's claims.
In a very broad, general rule sense, that's a good summary of standing, but really, the doctrine is a lot less broad than it seems. Craig v. Boren, for instance, is the classic example of litigating someone else's claims: a beer seller challenges a differential minimum drinking age law (lower for women) and has standing to claim an equal protection violation on behalf of 18-year-old men. Why? Because fewer of them will buy his beer.
Now here's what I'm not sure of: the brief mentions just generally that the change will 'cause chaos.' I'm not certain if that would meet the burden of proof for a plaintiff to show standing, or if a judge could merely conclude that standing existed--based on the assumption that we can come up with pretty much endless examples of cases that would have standing much like the ones above, that apply to anyone in the state who is (a) an employer, or (b) an employee.
I can't find a copy of the response to the plaintiff's brief in the case: that would tell if anyone's actually raising standing as an issue.
The issue of standing can, I think, be raised by a defendant at any time, even on appeal, or by the trial or an appellate court. So a final decision may be a long way off. I doubt that the Mass. Federal District Court would enjoin the SJC's decision from taking effect on May 17th. Meantime, where's my invitation?
The opinion is in. TRO denied, but the judge ruled they had standing and that the case was justiciable.
I firmly believe that the main reason Attorney Mat Staver of Liberty Counsel is so fervently against gay rights is:
1) He hates gays
2) He's using this "mission" to keep himself in the closet.
I dost think that he protests too much (thank you to Shakespeare or whomever said that originally). Mike Joseph, California
I think you are probably right.
Mat Staver always struck me as being an angry, cute but definitely gay man.
Good catch. Brent