In today's Best of the Web column in the Wall Street Journal, James Taranto writes:
"It seems to us it would be odd for the justices to hold that the defenders have standing in Windsor but not in Hollingsworth. On this question, however, we enter a rare plea of ignorance. Perhaps there is some pertinent difference, and if an expert in federal procedure would like to produce an explanatory email or blog post, we promise to read it."
OK; game on. It is a general rule that a litigant who suffers an injury that is held in common with all citizens (such as seeing a law enforced) does not have standing unless the litigant can show some concrete, personalized or particularized injury that is not shared in common with all others. See United States v. Richardson and Schlesinger v. Reservists Comm. to Stop the War. In Windsor it is the Bipartisan Legal Advisory Group, an agent of the House, that seeks to defend section 3. The House has an injury that is not the same as all citizens -- it is one half of the body that passed DOMA, and the President's failure to "take Care that the Laws be faithfully executed" by his refusal to defend DOMA operates as an effective after-the-fact veto of a bill passed by the House and Senate. That is a distinct injury that is not held in common with all citizems. By contrast, in Hollingsworth the proponents of Prop 8 suffer the same injury as all Californians -- the indignity of the Governor and Attorney General failing to defend a constitutional amendment. True, the proponents spent a lot of money, time, and energy to persuade Californians to vote for Prop 8, but the interest they seek to vindicate is the same that all Californians have.