Marriage Cases May Hinge on Procedure

In 1793, George Washington's administration asked the Supreme Court for help interpreting treaties. The court politely declined, telling the first president that it was in business to resolve actual disputes, not to give advice. Based on this week's Supreme Court arguments in two same-sex marriage cases, that precedent on judicial procedure—rather than the landmark cases on individual rights looming over the public debate—could play a role in resolving challenges to state and federal laws limiting marriage to heterosexuals.

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Chief Justice John Roberts was harsher still, suggesting President Barack Obama should have stopped enforcing the law and describing Mr. Obama's attitude as, "We'll wait till the Supreme Court tells us we have no choice.." A third party defended the federal marriage restriction—the Republican-controlled House of Representatives. But the court has almost always forbidden individuals and groups from litigating unless they can show how they personally were injured by the challenged conduct. Paul Clement, the lawyer representing the House, said Congress had an interest in seeing the laws it passes enforced. But several justices fretted over the prospect of legislative chambers second-guessing the government's litigation positions and entering cases as a sort of shadow executive branch.

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In the California case, the state didn't appeal after a federal district court ruled Proposition 8 unconstitutional. Private citizens who sponsored the 2008 voter initiative stepped in to defend it, something authorized by California law. But on Tuesday, justices said that federal courts had their own requirements for legal standing that were not controlled by state law. And some doubted whether the private citizens met them.

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But if the court dismisses the cases for lack of jurisdiction, the message would be one regarding the structure of government rather than civil rights. And it would be that if the executive charged with defending the government's laws concludes a law can't be defended, the remedy for those who disagree would be the ballot box, not the courthouse.

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