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

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 in the name of the Bipartisan Legal Advisory Group. Not only are these parties not clearly authorized by the appropriate legislative bodies to pursue such actions, but 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. 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. In this essay, 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. In short, neither party can answer the Supreme Court’s question in the affirmative.