May 14, 2004
Largess v. SJC (link)
by Nick Morgan
Perhaps Matto and I should bow our heads in concession to the District Court's accepting jurisdiction over the federal suit to enjoin enforcement of Goodridge, since we had both concluded that there was no federal jurisdiction. While our predictions (if they were, in fact, predictions) were incorrect, I am hardly satisfied by the court's cursory treatment of jurisdiction, especially in this age of the Supreme Court’s exuberant federalism. The court’s entire treatment of jurisdiction—just one paragraph—follows (but footnotes are omitted), with defendants’ contentions and my commentary interspliced.
Defendants: “this court lacks subject matter jurisdiction to review decisions of Defendant SJC”
Court: “this court is not reviewing any substantive holding of the SJC with respect to the Massachusetts constitutional issues that were at the heart of the Goodridge case. Rather, it is determining whether certain of the SJC’s actions in connection with the Goodridge case violated the federal Constitution, specifically its Guarantee Clause.”
Sounds correct. Alleged violations of the Guarantee Clause clearly “arise under” the federal constitution, and so there’s no trouble with subject matter jurisdiction.
Defendants: “[b]y virtue of the Eleventh Amendment, a federal court lacks jurisdiction to review state officials’ compliance with state law or to order state officials to comply with state law”
Court: “although state officials cannot be sued in federal court based on violations of state law, it does not follow that state officials cannot be sued in federal court based on violations of federal law. The Eleventh Amendment does not bar this court from ensuring, via prospective injunctive relief, that the residents of Massachusetts are not deprived of their federally guaranteed right to a republican form of government.”
This result may be ultimately correct, but the reason has nothing to do with the Guarantee Clause; the 11th Amendment might not bar this suit because under Ex Parte Young, suits against state officers in their official capacity might be characterized as something different than suits against the state itself (which the Eleventh Amendment bars). Suit against the individual Justices of the SJC might be okay under Young, but suit against the SJC itself is probably barred by the 11th Amendment (per Edelman v. Jordan, state agencies are shielded by the 11th).
Defendants: “Plaintiffs lack standing, because they cannot identify a cognizable injury that they will suffer as a result of the SJC’s actions or an injury that can be redressed by the relief that they have requested”
Court: “the deprivation of the right to a republican form of government, that is, the injury that Plaintiffs have alleged in this case, is sufficient to establish standing. Moreover, there can be no question that the issuance of an order enjoining the enforcement of the Goodridge decision would serve to redress that injury.”
The court cites no authority at all. This reasoning is completely inadequate: if all one must do is allege that a provision of the Constitution was violated (or, for that matter, any provision of law), then the standing requirement ceases to exist. Plaintiffs in Allen would have needed only to allege: “our injury is a deprivation of Equal Protection.” Stating a legal conclusion is not equivalent to stating facts that constitute a cognizable injury, and in these days of rigorous standing inquiries, I’m baffled that the court didn’t take standing much more seriously here. The requirement is called “injury in fact” which on its face encourages an extra-legal investigation into whether a material controversy exists; the inquiry is extra-legal because standing—at least in theory—is decided before the merits are reached. The court makes zero effort to show how the facts make out a palpable injury, and unless there are facts I’m missing, I still support the view that under current standing law, there is no injury in merely watching one’s state court act unconstitutionally, which appears to be all plaintiffs have here.
Now, in my opinion, standing is often more trouble than it’s worth, and I think the “case or controversy” requirement of Article III could, in all but exceptional cases, be satisfied at the 12b6 stage. Another problem with standing that’s highlighted by this suit is that when one’s state (supposedly) violates the federal constitution but doesn’t materially harm anyone (“material” being the loaded word here), no one can stop them in federal court. Violations of the Establishment Clause are often of this nature; people often really don’t like when the government unconstitutionally supports religion in a way that causes no “concrete” harms, but standing doctrine would appear to bar many suits against such unconstitutional action (creating a rights-remedies gap). Ultimately, it’s not that hard to find someone who is uniquely injured, but the requirement of unique injury seems a bit arbitrary. Although standing doctrine preserves the dispute resolution model of federal adjudication (i.e., courts are there only to resolve concrete disputes between actual parties), the public generally views important federal decisions as much more significant than a concrete dispute. If the public significance of Newdow, for instance, is whether the Constitution permits “under God” in the pledge, who cares if he had custody over his daughter? The case is about church and state, right? Sort of.
At any rate, standing is a requirement under current law, and this case presents serious jurisdiction questions. I would be very surprised if the court were not reversed on standing grounds, unless plaintiffs make better allegations of injury. For instance, as Tony Rickey has suggested in comments to an earlier post, plaintiffs might allege that in their capacities as employers, they must give gay married couples certain benefits, which would undoubtedly be an injury in fact. Plaintiffs’ counsel, however, may have chosen to avoid this route because it presents fairly serious ripeness problems (because it won’t be clear who has to cover what benefits until after May 17th—that is, the controversy is not yet ripe).
Defendants: “Guarantee Clause claims brought by individuals against their state governments are nonjusticiable.”
Court: “the United States Supreme Court, in New York v. United States, refused to embrace ‘[t]he view that the Guarantee Clause implicates only non-justiciable political questions . . . .” In fact, the Court recognized that it had previously “suggested that perhaps not all claims under the Guarantee Clause present non[-]justiciable political questions.’”
Since the court is relying on no more than dicta, it would be nice to see a discussion of the political question doctrine, but I don’t really care because the issue isn’t as salient or interesting as others.
This post is far too long, so perhaps I’ll return to the merits of the decision later.
May 14, 2004 04:10 PM
Hah! Republican Form of Government Clause my arse! I think you'll find even most conservatives know better than that. That provision is protected by non-judicial actors... you know... Scalia does a big spiel on this that governors, legislatures, etc. are all sworn to uphold the U.S. Constitution.
I'm afraid I disagree with pretty much all your criticism of the federal district court's decision, at least in the absence of case law supporting your theory that more concrete facts are needed to establish standing to raise a federal Guarantee Clause claim. The real impact of your logic, if courts were to adopt it, would be that a plaintiff must practically prove the merits of his claim just to establish standing, and only then move on to... well... proving the merits of his claim.
The practical realities of the defense you raise are governed by FRCP 12(b)(6), which is the likely rule you would premise a motion to dismiss for lack of standing upon. And courts, when considering a 12b6 motion, assume all facts alleged by the non-movant to be true. No, it is not enough to simply state "The govt. violated my equal protection rights" and rest your complaint on that. But if you have stated enough facts which, if assumed to be 100% true, could give rise to a constitutional violation that tangibly infringes upon a right enumerated in the federal constitution... you have standing.
UCL, you act as if any concrete facts have been alleged to make out an injury. What are they?
And this isn't my theory, it's the law of standing. I agree, as do many scholars, that concrete injury requirements practically mean plaintiffs have to establish the merits. That's a problem, which I take issue with in the post (again, I don't agree with much of standing law). The Court's logic is the problematic theory: one needn't allege ANY facts, one need only say "I am deprived of X constitutional right." Please do explain how that does not demolish standing altogether.
And if you want case law, see my previous post for plenty of it (I link to it in the first line of this post)
Oh, if you mean the 12b6 theory was my theory, then it is no objection that facts are taken to be true on a 12b6 motion, becuase facts are taken to be true on a standing inquiry also.
Check out the circuit court order (pdf). I think it really gets to the heart of the matter quite succinctly. In a footnote it mentiones there would be some questions of standing if this were a matter that could be review under the Guarantee Clause. But it deals with what I think are the real hurdles in three short paragraphs:
The central claim made by appellants is that the Goodridge decision erroneously interprets the Massachusetts Constitution and state law by appropriating to the court authority reserved to the legislature and, in consequence, violates article IV, § 4, of the United States Constitution guaranteeing to the states a republican form of government. For much of its history the Supreme Court has treated almost all claims under article IV, § 4, as non-justiciable political questions, see New York v. United States, 505 U.S. 144, 183-85 (1992) (collecting cases); Baker v. Carr, 369 U.S. 186, 223- 24 (1962), and while in recent years a few decisions suggest that the Court might alter its approach, e.g., New York, 505 U.S. at 185, one might expect that to occur only in an extreme case.
Further, appellants would also have to show not only that the state's highest court had in this instance misconstrued state law but, in addition, that a federal court should disregard the long- standing practice of federal courts to treat the decisions of the highest state courts as controlling interpretations of state law. Johnson v. Fankell, 520 U.S. 911, 916 (1997); Forysyth v. City of Hammond, 166 U.S. 506, 518-20 (1897) ("settled decisions" of the state's highest courts "regarded as authoritative by the courts of the United States") (citations omitted).
Finally, assuming that this barrier too were overcome, Goodridge does not establish permanent martial law or declare the Commonwealth a monarchy; and it cannot plausibly be argued that every disagreement about allocation of power within a state government--even a very important disagreement--raises a question under article IV, § 4. That this disagreement is important is obvious; but, at least so far, it is not obvious why its resolution one way rather than another threatens a republican form of government.
What I stated was a "theory" was your argument (which I now use as a synonym for your "theory") that "more concrete facts are needed to establish standing to raise a federal Guarantee Clause claim". Your response to this was to state that your argument was not a theory, it is "the law." Isn't that a matter of semantics that wholly fails to address the issue? And besides, an Article III judge in this instance determines what is "the law," not you. For more on that point, see my latest blog post on our battered Supremacy Clause. :)
Your question is, "you act as if any concrete facts have been alleged to make out an injury. What are they?" Well, I don't think there is any sense in going far in this debate if we can't first agree on whether the Guarantee Clause provides a federal right to anyone at all, anywhere, for any reason. I don't have a strong opinion on this because I've never researched it, but my instincts tell me (and dicta in NY v. US supports) that the rights provided for in the Clause are not illusory. The Clause can be violated, and such violation can lead to a redressable injury.
So what is the injury? Once again, if you accept that a citizen has the right to have the society he lives in to be governed by a republican form of government (rather than, say, a monarchy), in which fundamental questions such as "What is marriage?" are defined by a popularly-elected legislature and governor, that right is violated when one branch usurps the powers of another in a form that renders society one NOT governed by a republican form of government. In this case, the popularly-elected legislature and governor signed into law a provision which defines the plaintiffs' relationships with their spouses to be "marriage." The SJC supposedly altered that definition without a legislative mandate, and thus unilaterally altered the legal significance of the plaintiffs' relationships with their spouses. What I don't understand is what would be enough to satisfy you. I noticed in your criticism that you did not state an alternative, articulable standard to apply in deciding this question in the Guarantee Clause context. Do you have one?
I think UCL puts the cart before the horse: a violation of an individual's constitutional right would indeed give rise to standing, but the question is whether the constitutional provision gives rise to a right at all. With something like equal protection it is generally easy: the government treated me differently.
However, the provision here is a little stickier as the right is to a form of government (which falls on all citizens equally) rather than aggrieving any individual more under the law. On my blog I noted that Schlesinger v. Reservists Committee to Stop the war, which held that a citizen did not have standing to challenge a congressperson's eligibility to be a congressperson because there was no concrete and particularized harm to the petitioner over all other citizens. I feel the Guarantee Clause callenge is in a similar vein.
Note that this is not the same reason A. Rickey thought there would be standing in his thoughtful comments to earlier posts: it is not based on the payment of benefits to same-sex couples under the law, which could be concrete and particularized (though I personally believe is speculative). The court granted standing on the workings of government alone, and I agree with Nick that it is completely unsatisfactory.
Another reality of litigation to consider, whether you think it is proper or not, is that district court judges have a tendency to shape their opinions in a way that will reduce the chances of reversal on appeal. The judge did so here, by ruling in favor of the plaintiffs on the standing issue with scant commentary but rejecting their central arguments.
When I say "the judge did so here" I mean that his opinion had the effect of reducing chances of reversal, not that he necessarily intended to do so.
Also, I note that Matto's argument is that there is no conceivable claim that can be made arising out of a violation of the Guarantee Clause. We know that not to be true, just from the appellate quotes provided in this very blog. If a state decided to abolish its legislature and judiciary, and appoint a single King who would reign until his death, this clearly gives way to a GC claim.
UCL, I agree that the Guarantee Clause confers a right. But the whole point is that, contrary to Marbury v. Madison, it is not always the case that every right has a remedy (see every topic covered in a typical Fed Cts class). In many cases that find no standing, there is no dispute that plaintiff has some right, the dispute is whether plaintiff has alleged facts that make out a concrete, palpable injury (under the theory that Article III power is limited to such cases / controversies, and other rights are simply not justiciable). You don't seem to like that a consequence of standing doctrine is to deny rights of action in cases where there are rights violated--I agree, and that's a problem with standing that I discussed in my post. Again, when I claim that Ps here have no standing, I'm simply attempting to apply the law of standing as it is (and if you want to say that only judges decide what the law is, not me, then why are you, not a judge I presume, arguing about this with me?).
You ask for a standard to determine when Guarantee Clause claims have alleged enough to make out an injury, but I needn't articulate such a standard--the meaning of "injury" in standing law has been articulated again and again. Ps here appear to state nothing that differentiates their grievance from the grievance of any other citizen. Such is NOT an injury under what I take to be very clear case law. Is it the "right" result in a normative sense? Well, I often don't think so, but it's the law.
Under current law, would there ever be a claim under the Guarantee Clause that could survive standing inquiry? I don't know, because I don't know what the Guarantee Clause is supposed to actually guarantee. If it is the case that standing doctrine would toss all such claims, then I'm with you 100% in objecting to that result, and advocating an "exception" to standing law for such claims. But the court here made no such argument. and given Schlesinger which Matto mentions above, it doesn't seem likely that the Guarantee Clause would get special treatment.
So if you're arguing that there should be an exception to the Guarantee Clause, I think the burden is on you to articulate a standard. All I'm trying to do is apply the settled law as I see it, and I still haven't heard any arguments why plaintiffs here have a concrete injury that is more particular than any Massachusetts citizen, and that is concrete and palpable enough to satisfy Article III as interpreted by the Supreme Court.
one point I forgot to mention: if a state transformed to monarchy, there would undoubtedly be a host of concrete harms (people might lose property, constitutional voting rights would be violated, lots of people would lose government jobs), but what's weird about the guarantee clause is that many such harms would be covered by other provisions of the constitution (due process, takings, equal protection), and so it's unclear whether the Guarantee Clause is totally redundant, and if not, whether it's regions of unique application would involve concrete injury. if any folks know what this clause is supposed to do, please speak up. :)
I'd like to thank everyone for some very insightful discussion on this thread. The Circuit Court order was most informative, too.
This is, of course, an area where there will probably be no manageable test, i.e., Potter Stewart's "I know it when I see it."
The problem with giving a wide berth to standing here is that it would actually increase, rather than decrease, the number of (arguably) political/legislative issues that are fought through the court system rather than at the state house. The door certainly swings both ways as there can be "activist" conservative as well as liberal judges.
Ultimately, I doubt any member (liberal or conservative) of the federal judiciary would want to erode away their power no matter what the thematic political result (Federalism).
A lesson that can be learned from Bush v. Gore (apart from the supposed political motivations of the outcome) was that it gave the Court... shall we say.. "gravitas." The Court stepped forward and said we have the power to be the final arbiter of this issue.
As far as the merits go... well... it's pretty weak. The Justices of the SJC are appointed by the Governor who is politically accountable to the people. Although there isn't a purely direct correlation (like say elected Justices like in some states), theoretically speaking people should know what kind of judges a governor will appoint if elected. Moreover, it is the "Republican" Form of Government Clause and not the "Pure Democracy" form of government clause.
Obviously the Framers had it in mind when they wrote article III that (at least on the federal level) judges who were appointed for life would be making decisions that a simple majority of people may disagree on in some instances. Thus I highly doubt that life tenured judges making unpopular decisions rises to the level of an unRepublican form of government. To say so would practically open up every judicial opinion to a an additional collateral review.
Judicial Review does not necessarily equal Judicial Supremacy, i.e. supremacy over the other branches in interpreting the Constitution. I recently finished reading Constitutional Commentary’s Volume 20, No. 2, Summer 2003 issue, “Marbury at 200: A Bicentennial Celebration of Marbury v. Madison”. The last article in this issue is entitled “Judicial Supremacy and Its Discontents” by Dale Carpenter, at pages 405-436. This article addresses in various time frames the subject of Judicial Supremacy, including current views of academics, such as Michael Stokes Paulsen and Larry Kramer, who oppose the concept of Judicial Supremacy. Carpenter does a good balancing act. Read it.
A few things to note:
a) Nick's 'rule' on standing isn't as solid as it seems: Flast v. Cohen, an older case, but still good law.
b) From what I can tell--and this is just by looking at what case law I've done as part of my Con Law course--it doesn't look like the plaintiff need specifically allege the elements that give them standing, so long as the court could construe it. (E.g. if the court felt that, as part of a Guaranty Clause claim, Liberty was implying the kind of arguments I made below, he can merely take that as given.)
All of this 'You can't claim injury in fact' argument seems to me to be a bit of rhetorical nonsense: we've had innumerable arguments on here where the supporters of gay marriage have focused on how civil marriage is state recognition and required individual recognition of a package of rights. Allowing same-sex marriages will mean that individuals--almost certainly some of Liberty's members--will be forced to legally recognize a relationship they would rather not. This doesn't pose a 'ripeness' issue, simply because the 'harms' here are reasonably predictable not only to a judge, but anyone with an eye for consequences.
The cases given as examples above--taxpayer's lawsuits, suits regarding the fitness of Congressmen--all deal with the proper line regarding standing: no one involved is going to be forced to do anything that will cause an injury. This is easily distinguishable from a case involving marriage, and is obvious on its face. Someone can correct me, but I'm pretty certain that standing is not a 'magic words' requirement: a plaintiff doesn't have to make it clear that he has standing, so long as a court can construe it.
May a court presume standing based upon the pleadings, subject of course to challenge by evidence presented to the court? As I understand it, lack of standing may be raised by the defendants at any stage, and then determined by the court, including on appeal, at any time. Assuming that standing is not successfully challenged, the plaintiffs still have the burden of proof that the SJC's decision is unconstitutional. The plaintiffs have a long way to go. Meantime, other states may accept same sex marriage. And the experiment at the state level may continue. Meantime, estate planners in Massachusetts have some serious issues to address for same sex spouses. Query whether the FMA would clearly bar employing the federal marital deduction? If so, Massachusetts follows the IRC for purposes of the Massachusetts Estate Tax for the most part with the sponge tax. Crazy. I'm glad to be in retirement. You can ask, but I won't tell - because I don't know.
Tony, you vastly underestimate the injury requirement. Please cite authority if you really think it's enough to say "well, this is marriage, so there is bound to be some injury to someone at some time or another." Plaintiffs themselves must be among the injured, and I'm afraid you have also underestimated the ripeness problem. The task is not to find out whether some person may have to provide benefits at some point, the question is whether these plaintiffs will. Do you contend that plaintiffs know whether they have gay employees? And if so, do you seriously think it is "reasonably predictable" which ones will get married?
By focusing on the bigger picture (i.e., that marriage is bound to burden some citizens of massachusetts), you completely miss the issue--Article III (as interpreted) only gives federal courts power to adjudicate concrete, live controversies between particular paries. If all you've got is "someone out there will eventually be burdened" plus the generally losing approach of taxpayer standing, then perhaps your level of confidence should drop a great many notches.
Certainly it's not enough just to state that someone might be injured at some point. Nonetheless, I'm contending that--barring some question by the defendants that doesn't seem present--a judge can assume that if there's a reasonable probability of injury, it may simply not ask the question.
Presuming the plaintiff's theory of the case--that the Guarantee clause means he should have the ability to affect the political process through voting--then that can be considered a cognizable injury not requiring 'taxpayer' standing. But more to the point, the judge may simply concede that Liberty could find some member who did have standing--again, given that it's not that tough--based on the size of the group and the statistical likelihood of it happening.
While it would be weak, admittedly, I simply don't see the law of standing as being as high a hurdle as you seem to imply. Flast v. Cohen is still good law, and implies that even taxpayer standing would hold up if there is an injury that exists for which no single individual would otherwise have standing. Such exceptions have been made, and exist, for outlier cases.
The court was right to strike it down on other grounds. Indeed, I'd contend that it was right to strike it down on other grounds even if they were wrong on standing: by making sure that the only 'problem' with the case is the substantive issue, it discourages anyone from making the relatively easy moves necessary to find standing--I'm betting I can find an anti-gay marriage employer who knowingly employs a gay person in the state of Massachusetts--and filing the suit again.
often legislators get dismissed from suits on standing grounds. here, tho, they allege a separation of powers argument, that the state court has usurped their powers.
if they were right on the merits, they would have standing.
i would still expect abstention arguments to justiciability, on federalism grounds, unless the facts were a lot stronger.
thier conclusion was, not much likelihood of success. our questions about jurisdiction and justiciability support that conclusion. if the merits otherwise looked sound, the court might have looked harder at jurisdiction.
Okay, I think I've gotten about as rambuctious about standing as a fellow ever needs to be, so I'll leave the debate as it is (and it's been fun).
arbitraryaardvark, I wanted to ask you about a brief you mentioned in comments to some other post, but I can't find your email address. Flip me an email if you like: email@example.com. Thx.