Why does the 10th Circuit spend 7 Pages Talking About Standing?

June 25th, 2014

In the 10th Circuit’s opinion striking down Utah’s ban on same-sex marriage, it spent 7 pages talking about standing, only to ultimately find that everyone has standing. Why? As the Court notes, “it was not raised by the parties.”

Of course standing can be raised at any point, but I suspect there may be ulterior motives. Much of the discussion talks about the contours of state law, and whether local county clerks, the Attorney General, or Governor have standing to defend the law. In this case, all the parties were lined up, so there was no problem. But in other states, where the Attorney General or Governor may decide not to appeal, a county clerk may be the only party in interest. This was somewhat how the Court resolve Hollingsworth v. Perry. So, methinks the court may have been setting a discussion for why other parties would lack the standing to appeal.

The Salt Lake County Clerk, however, has not appealed from the district court’s order. We must therefore consider whether the Governor and Attorney General are proper appellants absent the County Clerk. See Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (“[S]tanding must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” (quotation omitted)).

Maybe. Or not at all. But odd that so much effort was spent on a point no one contested.