Article III Standing and State Separation of Powers

Abstract

With marriage equality likely to receive the blessing of United States Supreme Court as a fundamental right in the near future, the Court’s refusal to determine the Constitutional merits of the issue just three years ago in Hollingsworth v. Perry might ordinarily end a minor footnote in history, considered a false start in the overall fight for equality. At the time, it certainly was less celebrated than its companion case, United States v. Windsor. But while the Court’s decision in Windsor had a momentous impact on the rights of the LGBT community, both cases involved justiciability issues that also are likely to reverberate into the future. And of the two, it can be argued that the Court’s decision to dismiss Hollingsworth for the petitioners failing to meet Article III standing requirements is the more critical. The Court’s holding that the petitioners could not represent the State’s sovereign interests in federal court, despite them being authorized to do so under California law, threatens to disrupt fundamental rationales for states adopting a form of direct democracy.