Article III Double-Dipping: Proposition 8's Sponsors, BLAG, and the Government's Interest

Goldberg, Suzanne B.

A major procedural question looms over the two marriage cases currently before the U.S. Supreme Court: Do the parties who seek to defend the marriage-recognition bans have standing to advance their views? The question arises because the governments that would have Article III standing, by virtue of their enforcement authority, are not defending their own laws. Instead, in Hollingsworth v. Perry, private parties are attempting to take up the state government’s mantle to defend Proposition 8, which withdrew marriage rights from same-sex couples in California. And in United States v. Windsor, five members of the House of Representatives leadership seek to defend the federal Defense of Marriage Act (DOMA) in the name of the Bipartisan Legal Advisory Group (BLAG).

As a preliminary matter, these parties’ formal authority to assert the government’s standing is questionable. In Perry, the California Supreme Court ruled that the ballot measure’s sponsors could act in the government’s stead to defend “their” initiative, but that ruling lacks support in California law. BLAG’s authority in Windsor is also fragile. BLAG did not obtain approval from the House of Representatives until nearly two years after first intervening to defend DOMA in federal court (and well after filing its petition for a writ of certiorari in Windsor). And even with that approval, BLAG represents only the House, rather than the full Congress that passed DOMA. In addition, in both Windsor and Perry, there are significant problems with the lower courts having permitted intervention at all.

There are two more fundamental difficulties with the Perry petitioners’ and BLAG’s claims to standing. First, each presents the Article III double-dipping problem to which this Essay’s title refers. The problem arises because there are parties asserting the government’s interest and, therefore, the government’s standing, on both sides of each case. That is, the California and United States governments have taken the position that their exclusion of same-sex couples from marriage is unconstitutional while the Perry petitioners and BLAG seek to argue, also on the government’s behalf, that the exclusions are constitutional.

The second problem arises from the premise, essential to the standing claims of both the Perry petitioners and BLAG, that governments can confer their Article III standing on private actors and subsets of legislators. The difficulty is that the government’s standing derives from its interest in enforcing its laws, which is not an interest shared by either group.

The remainder of this Essay elaborates these two points in the context of the Perry and Windsor cases. I argue that both the double-dipping problem and the limits on a government’s ability to transfer its standing to private actors in this context leave Proposition 8’s sponsors and BLAG without Article III standing to press their positions. Nor can either group of would-be defenders demonstrate the “concrete and particularized” stake it would need to have standing in its own right rather than on the government’s behalf.


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March 9, 2020