Why Standing Exists in Windsor But Not in Hollingsworth

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.  

Comments

[DrGrishka]

The problem with that analysis is that under California Supreme Court's decision in Perry v. Brown, the official proponents represent not their own interests, but that of the State of California. Everyone agrees that the State has standing to defend Prop 8. So the only question is who gets to represent the State. It seems to me that the question of who gets to represent and speak for the State is an issue of state law.

[Evan Sorem]

While I understand the argument, refusing to answer the question is the coward's way out. We'll see about Justice Kennedy come June...:)