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March 27, 2013



I'm in favor of finding standing in both cases, for just the reason Boehner's spokesman gave. Somebody's got to speak for the law, so long as the law is on the books, or America can't know what the law is. It's not only the province but also the duty of the Supreme Court to decide what the law is.

Yes, I realize that dismissing the Prop8 appeal reinstates gay marriage in California, and dismissing the Windsor appeal upholds equality in the 2nd Circuit, while in each case affirming standing risks a ruling on the merits that I won't like (and that may deeply harm America). But what about the law in the rest of the nation? What about amended/superseding statutes? What about the inevitable Circuit splits? The cases cry out for decision.

Yes, I realize that the Prop8 argument hit on a valid point when it was noted that there's no "fiduciary" duty of the appellants to the State that passed the law, but standing should hinge also on what's at stake and how faithfully the litigant will pursue the cause.

The doctrine of standing should not be a formula or a straitjacket. It should be applied so as to maximize its goal, to fulfill its purpose.

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