More Standing Trouble

In fact, the more that I think about it, the uglier things get. Posit, for a moment, that state standing law is more expansive than federal standing law, or can be. My sense is that this is an uncontested proposition -- witness California's expansive consumer standing under 17200 (the deceptive marketing statute that brought us Nike v. Kasky). But now consider what happens when you try to take a case from state court out to federal court and thereby lose standing.

The first sitation where this would happen would be in diversity jurisdiction, which isn't too much of a theoretical problem, since the state courts remain open for business. Plaintiff and defendant are stuck in state court, but that's not intrinsically an evil, as the various periodic proposals to abolish diversity jurisdiction remind us.

More serious, though, is the problem of Supreme Court review of judgments from state courts. There's caselaw -- I've asked around on this, and looked through Hart and Weschler -- that a plaintiff who lacks federal standing but loses in state court does not gain federal standing simply by losing. Even where there's a constitutional issue at stake, unless a concrete interest of yours is threatened, you don't have federal standing.

The converse bootstrapping trick, note, does work. If I don't have federal standing to sue you, but I do have state standing, and I sue you in state court and win, you do have standing to go to federal court to see redress on the merits. The concrete judgment against you, if it threatens, say, a liberty or property interest of yours, does give you standing to invoke the federal court system.

What this means, if I skim my cases right, is that if these San Franciso cases go up to the California Supreme Court, there will be a standing asymmetry involved. If the gay couples lose at the California Supreme Court, they'll have standing to appeal to the United States Supreme Court. But if the conservative groups lose in California, they're stuck there, and can't appeal.

Now, at the moment, this issue is largely academic, in that what's involved is the interpretation and application of California (and local) constitutional and statutory law. There aren't federal questions involved, nor are there Constitutional ones. Leaving aside the issue of the citizenship of the parties (one of the conservative groups is from Arizona, I believe), the federal courts dont't have subject matter jurisdiction over these suits, so the issue will stop at the California Supreme Court.

But now, suppose, that these cases are coming up in Massachusetts. And suppose that the Federal Marriage Amendment has been passed, with its language about the "legal incidents" of marriage. Now, finally, suppose that the Massachusetts Supreme Judicial Court holds that the FMA does not preclude its holding that the Massachusetts Constitution requires granting some particular right to gay couples as well as to straight. If the conservative groups suing to void the marriage licenses think that the SJC has misinterpreted the FMA, they would appear to be without, so to speak, a leg to stand on.

This, to me, seems like the standing system going haywire. I can't see this result actually, well, standing. But I'm scratching my head trying to think how the Supremes would deal with it in practice. My favorite perverse idea is that they would read the FMA to contain an implicit repeal of the Article III standing doctrine as regards citizen suits to enforce the FMA against states. But this would be a theoretical can of worms, given that it would seemingly allow a similar reading of an implicit standing extension for every other amendment.

Or, perhaps, they might try to reshape standing doctrine in a more sensible way. Now, that's a good project, but in a federal system, this puzzle will arise whenever state standing rules are more expansive than federal ones. That creates a pressure either to hear these cases in federal court (which destroys the idea of a unified national constitutional standing doctrine), or to leave federal "rights" without remedies, under certain circumstances.

But that's life under federalism, I suppose.