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Tag: Oklahoma

Tenth Circuit Focuses on Standing

First, if you haven’t read Scottie’s report, close this tab, and go read his post now. I think you can gain a lot through a listen or two of the audio (MP3 file available here), but there is just nothing that can make up for the ability to see the argument in person and view the body language of the judges. It is one of the reasons that I am so supportive of the work that Scottie has been doing. If you are able, consider clicking on that donate button up top.

Anyway, I have now had an opportunity to listen to the tape, and I guess the biggest thing I can say is: standing, Standing, STANDING. I figured it would come up, but not that the plaintiff’s attorney would spend almost all of his time on standing. Briefly, wikipedia has the following definition for standing: “ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.” That’s perhaps more broad than we need here, but basically it means that you want parties that can best represent the issues to the court.

If you look back to the previous 10th Circuit panel which dismissed the case for standing, the court basically told the plaintiffs to sue the county clerk as the best representative of the judicial branch that authorizes marriages in Oklahoma. And that’s what the plaintiff said as he was trying to steer conversation back to the more substantive issues. And maybe they haven’t found the exact perfect defendants, but I believe that at least two of the judges were leaning towards finding standing.

Now, the related questions that seemed to be most troubling for the three judges was standing for the question of whether the court had standing when legally married same-sex couples from other states tried to be recognized in Oklahoma. The judges seem to clearly understand that the clerk took action when issuing a new license, but when you move from, say California, to Oklahoma, do married couples go to the clerk? And who would be the right person to sue for that? Is there a right person at all?

It was at this point that Judge Lucero brought up the concept of “Capable of repetition, yet evading review.” This is a concept under the mootness doctrine that allows courts to hear cases even when the case isn’t really at issue anymore. Your textbook example of that is a case involving a pregnancy. The pregnancy ends, but the issue will remain for other women. The same could also be said to be the case here.

The other side of out of staters coming in was the question of “severability.” That is, if the panel strikes down the licensing provision, would the whole scheme fail? Or could the ban on out of state couples endure? That result would be something of a head scratcher, and really make no practical sense. But, I suppose it could happen if you don’t strike down the whole provision, and then the court can’t reach a decision on out of state marriages.

In the end, one suspects that much of this conversation will be academic. If the court decides to strike down the whole same sex ban, then the question of out of state marriages probably becomes a logical victim of circumstance and practicalities. As for the substantive issue, I don’t think we can read a whole lot more into today’s hearing than we got from the judges questions in the Utah case.

If I were a betting man and pressed on the issue, I’d be inclined to say 2-1 in favor of equality for both cases. But I think Holmes and Kelly could yet go either way. Holmes may just find that a simple rational basis test compels upholding the ban. Or perhaps Kelly could even switch over to striking down the measure on a heightened scrutiny basis. Reading the tea leaves on judges questions is a tough, tough business, so perhaps we just have to hope that the decision comes down soon.

206 Comments April 17, 2014