Dismissal of Gay Marriage Case Could Cast a Long Shadow

Yesterday, the Central District of California, per Judge Carter, dismissed for failure to state a claim a suit brought by Arthur Smelt and Christopher Hammer, alleging that California’s failure to grant them a marriage license contravenes basic notions of due process and equal protection. The case challenged both California’s Proposition 8, and the federal Defense of Marriage Act.

Although I can’t find the opinion on the Central District’s site, the LA Times lists standing as the reason for the dismissal. In the federal courts, plaintiffs must have “standing,” meaning they must allege (1) an injury in fact, (2) fairly traceable to defendant’s conduct, and (3) redressable by a favorable verdict, or face dismissal at the threshold. The actual doctrine of standing is incredibly complex, and it’s one of the most commonly known doctrines of justiciability, responsible for withdrawing fairly significant matters from the federal courts. Apparently, this case foundered on the first prong: while I can’t comment on that reasoning without seeing the actual opinion, it seems that when a marriage case fails for failure to state a cognizable injury, the problem is more with the complaint than with the actual law. A properly drafted complaint, or a receptive judge, could cure the standing difficulty easily, I would think.

That last bit may be just the point, though. The esoteric qualities of standing, and other doctrines of justiciability, make them ideally suited for dismissing properly presented but impolitic cases. For example, in the wake of Brown v. Board, the Supreme Court scrambled for any reason to turn down cases questioning miscegenation statutes, not because the Court believed a ban on miscegenation to be legal, but because it didn’t want to further inflame the South, so quickly after Brown. Between this case, and some fairly apparent stalling in Perry v. Schwarzenegger, the case being litigated by constitutional superstars David Boies & Ted Olson, we may be looking at the same thing, in the gay marriage context. Gay marriage is no longer an “if” — the law is on our side — but the “when” may be pretty far off, still.

Sorry for the delayed & sloppy post — it’s a busy week.

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