Standing is an element of subject-matter jurisdiction (if the plaintiff or appellant lacks standing, there is no "case or controversy" and the case cannot be heard in federal court). So, even if the parties do not raise the issue, SCOTUS will always decide for itself if there is standing at the SCOTUS level, and can review the lower courts' decisions as to standing.
If SCOTUS decides that the appellants lack standing, it can either dismiss the appeal (which will leave the 9th Circuit's decision in place in California, but without any precedential impact on other states), or it can decide that there never was standing even in the lower courts (which will wipe out the lower court decisions). Either way, the Court would avoid a ruling on the merits of gay marriage. That seems to be what Kennedy wants to do: he does not want to be the 5th vote to decide the constitutionality of gay marriage either way. My guess is that he is personally in favor of gay marriage but he would prefer to have it enacted by voters and legislatures rather than imposed by the courts.
Thank you. That explains the standing issue in this case much better for me.
Breyer seems to think that the petitioners do not have standing in federal courts but do in state courts.
He said that 40 states have what is called a public action where any citizen can bring action to “vindicate the interest in seeing the law enforced.” He then went on to say that historically the court has ruled that such cases do not belong in the federal system.
So if the court ruled that the petioners do not have standing in any federal court, that would overturn the 9th Circuit and uphold the CA Supreme Court, correct?
“If SCOTUS decides that the appellants lack standing, it can either dismiss the appeal (which will leave the 9th Circuit’s decision in place in California, but without any precedential impact on other states), or it can decide that there never was standing even in the lower courts (which will wipe out the lower court decisions ... and would leave the California Supreme Court’s ruling (which upheld Prop. 8, albeit only prospectively) in place. “
Thanks, now the questioning makes sense!
Tomorrow is the big one. Future libertarians (if the future welfare dispensers allow any libertarian expression) will be discussing the “tragedy of the common[s] rights” if SCOTUS forces the feds to recognize ANY state definition of marriage.
So I expect them to do just that.