Is it heretical of me, or merely quirky, to find myself nearly as fascinated by the procedural game the Supreme Court is playing in the same-sex marriage cases as I am by the underlying merits of the two appeals the court has agreed to decide?
After all, same-sex marriage is legal in nine states and the District of Columbia, and public opinion on the issue is evolving rapidly in other parts of the country, with or without the blessing of the United States Supreme Court. On the other hand, the procedural minefield the court has laid around these cases may hold implications reaching well beyond the domain of gay rights — for the relationship of states to their citizens and for the balance of power between the president and Congress.
I say “may”: the court, never exactly a model of transparency, was more than usually opaque in the orders it issued last Friday afternoon.
In accepting Hollingsworth v. Perry, the case on the constitutionality of California’s Proposition 8, prohibiting same-sex marriage, the justices instructed the parties to brief and argue the preliminary question “whether petitioners have standing under Article III, Section 2 of the Constitution in this case.”
And in United States v. Windsor, the challenge to the Defense of Marriage Act, which bars federal recognition of same-sex marriages that are valid under state law, the court posed these additional questions:
“Whether the executive branch’s agreement with the court below that DOMA is unconstitutional deprives this court of jurisdiction to decide this case” and “whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.”