This morning, on NPR, David Greene and Nina Totenberg said SCOTUS "ducked" the constitutional question of gay marriage. So did Emily Bazelon in Slate. So did lots of folks. But what SCOTUS said to NOM and Focus on the Family was MYOB. Come back when you have a problem. Which is a very good ruling.
Emily Bazelon, writing an "open letter" to Walter Delinger in Slate.com about the Supreme Court's Prop 8 decision said
The justices didn’t strike down California’s marriage ban in the second case before them. They punted on it, thanks to a theory about lack of standing we owe to our own dear Walter—and which he actually previewed in 2010 in Slate.
Nina Totenberg and David Greene said about the same thing this morning on Morning Edition, which is actually what set me off. http://www.npr.org/...
But that's not a fair characterization. They didn't "punt." They told the appellants to mind their own business.
A Supreme Court ruling that the appellant lacks “standing” is not the same as, say, the Last Resort Rule, that says that if the court can decide who won on a statutory or common law basis, it should not rule on the Constitutional question presented. In the Last Resort case, the Court is saying that it does not need to decide whether or not the Congress acted properly if the case may be resolved another way.
But when the Court rules that the appellant lacks “standing,” it is saying that “this guy isn’t personally affected by this case.” Said another way, “this case is none of your damned business. We won’t rule unless someone is presenting the case who has a legitimate reason to care.”
That’s GREAT news for the home team! If you are a straight married couple, how does it affect you if two guys want to get married? If you can show how you are hurt by such a thing, THEN you will have standing. Governments have standing to defend their own laws. If a government of elected officials want to pass a law and then enforce it, they have standing to defend it. And if that law impinges upon constitutionally protected rights, they may have to show that they are protecting someone who needs protecting, or furthering some other kind of legitimate or maybe even significant governmental purpose.
But the Court doesn’t have a “busy-body” door where I can run around filing lawsuits to protect people who don’t want to come to court. I can’t look at my neighbor’s back yard and conclude that the guy behind him has built a fence two feet into the neighbor’s back yard and sue to defend my friend.
That’s what the Court told NOM and AFC and Focus on the Family and all of the right-wing whackos who think somebody is injured if all of my friends can get married. They argue that somebody is “re-defining marriage” when we allow others to join the club, but they can’t show how THEIR marriage is “re-defined.” I was wondering if Kos or Facebook or whoever still has those polls people used to put up. I would like to see the results of one that asked straight married couples if they tried to have sex last night. Were they successful? Was it good? Was it less last night than it was before gays could also get married?
If they could prove that striking down DOMA was the proximate and forseeable cause of their erectile disfunction, THEN they’d have standing. But until then, SCOTUS told them to fuck off. That’s not “ducking the question.”