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Estate PlanningLegal AnalysisMarriage Equality

Unraveling the Windsor Knot Part II

By July 24, 2013One Comment

Flags of JusticeIn Part I, we covered the U.S. v. Windsor (Windsor) analysis on the first component of standing: Article III requirements. Standing is the term of art used to discuss whether (1) parties have a case or controversy that the courts can hear, i.e., “Article III standing,” and (2) even if the court can hear the case, after considering other factors, the issue becomes should it, i.e., “prudential standing.” Here, in Part II, we continue looking at the issue of standing, specifically, satisfying the prudential principle.

HINT: If you don’t want to fight through the necessary legalese, bullet points are at the end.

Having found Article III standing requirements met, the majority in Windsor, continued to prudential considerations. The Opinion used prudential considerations to address the BLAG’s standing. Before discussing and explaining what prudential standing is, Justice Scalia’s reference in his dissent to the majority’s use of prudential considerations is worth noting.

Scalia argued that that majority sees the Article III requirements of adverseness as “prudential.” Recognizing how the Court uses the term “adverseness” in the Opinion, one can understand Scalia’s observation that the majority conflates adversity within the meaning of controversy for Article III standing and the adverseness involved with prudential standing. The majority cites Allen v. Wright (Allen) to explain the principle of prudential standing and offers Warth v. Seldin (Warth) as an example of how the limitations considered in the prudential principle can be overcome.  And it is with these 2 cases that we’ll continue untying the Windsor knot of standing.

Young male graduateAllen is a 1984 case where African-American families challenged the IRS’ standards for tax-exempt status as those standards were applied to private schools that allegedly engaged in racial discrimination.  The Court in Allen, stated that the prudential strand of standing called for “judicially self-imposed limits on the exercise of federal jurisdiction, such as (1) the general prohibition on a litigant’s raising another person’s legal rights, (2) the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches (a little ditty known as the “political question doctrine”), and (3) the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.” So this means that even if Article III standing is found, an appellate court does not have to hear a case if it is limited by one or more of the 3 factors listed above, i.e, if the Court is limited by prudential considerations.

Ultimately, the Court ruled that the plaintiffs in Allen lacked Article III standing. Since the plaintiffs lacked Article III standing, whether the plaintiffs had prudential standing was irrelevant. The Court also made clear that an individual’s mere assertion of a right to have the federal government act in a way that is lawful is not sufficient to have a case heard.

Warth, decided in 1975 – before Allen, involved taxpayers, residents, and a non-profit organization of Rochester County, New York that opposed zoning laws preventing low and moderate income families from being able to live in Penfield, NY. Proponents of the zoning laws were Penfield’s town, its Zoning Board, and Penfield’s Planning Commission members. The Court in Warth, first elaborated on Article III standing requirements and found them unmet but still considered prudential limitations, stating that “countervailing considerations … may outweigh concerns underlying the usual reluctance to exert judicial power.” So while Article III standing is required and prudential limits can veto Article III standing, certain factors can also veto prudential standing.

In the same analysis structure as Warth and Allen, the Court in Windsor first considered Article III requirements, which the Court found satisfied. Then the Court considered the prudential limitations and found that sufficient “countervailing considerations” outweighed prudential limitations. This, Justice Scalia found, “incomprehensible.” But Scalia failed to mention that if the Court’s discussion in Windsor is viewed en toto, the Court is undoubtedly considering the 2 components of standing as separate components: Article III standing as explained in Lujan v. Defenders of Wildlife and (2) prudential limitations as explained in Warth and Allen. In fact, the majority stated outright, “The Court has kept these 2 strands separate: “Article III standing, which enforces the Constitution’s case-or-controversy requirement [citation omitted]; and prudential standing, which embodies “judicially self-imposed limits on the exercise of federal jurisdiction.” However, using the terminology generally ascribed to one principal as a way to explain how the other principle is applicable is assuredly confusing. And Justice Scalia’s comments, in typical Scalia form, magnify the confusion.

Windsor07Forgetting Scalia’s commentary, the explanation in Warth clarifies the Windsor Opinion’s take on prudential limitations.  Warth explains that if a plaintiff’s claim affects the legal rights of third parties, then prudential limits that might generally apply may be set aside. In other words, protecting the legal rights of persons outside the immediate parties involved might be more important than denying relief to one, as long as Article III requirements were met. In Windsor, Edie’s “win” wasn’t really a win because the IRS still refused to refund her money. So there was Article III controversy. Equally important, DOMA, a congressional statute negatively affected the rights of hundreds of thousands of others.  It was this negative effect, which the majority called “adverseness,” that met the Warth test for overweighing the prudential considerations to which the Windsor majority referred in its prudential principle discussion.

Justice Scalia chided the majority for calling “adverseness” an element of standing, when, in fact, per Chadha v. INS (Chadha) and Baker v. Carr (Baker), the adverseness that the majority refers to is provided to support an argument for prudential standing. Furthermore, Scalia projects the majority’s use of prudential standing in Chadha onto the majority’s use in Windsor, when it is not the use of prudential sanding as it was used in Chadha but the underlying factors of prudential standing that the majority used in Windsor.

Again, by stepping back a few paces and analyzing the majority’s discussion as a whole, Baker also illuminates the issue and provides foundation for the Warth explanation. Baker was decided in 1962. In this case, Tennessee residents who should have been eligible to vote for Tennessee’s General Assembly were told they were ineligible. Consequently, they brought action against a 1901 statute that organized the Tennessee’s General Assembly count seats in a way that diminished the impact of their votes. Why does a certain SCOTUS decision regarding voting rights in this past term suddenly come to mind? I digress… Anyway, the Court in Baker stated that “concrete adverseness that sharpens the presentation of issues upon which the Court so largely depends” when considering challenging constitutional questions was significant. And in Baker, the plaintiffs having sufficiently satisfied Article III requirements, the Court after considering the legal rights of those implicitly disenfranchised in Tennessee found prudential limitations inapplicable.

And there you have prudential standing (or prudential limitations or principle of prudential standing):

  • Baker in 1962 stating that prudential considerations must involve “concrete adverseness”; the Windsor majority stating that “concrete adverseness” existed;
  • Warth in 1975 explaining that the considerations could be overweighed by other factors negatively affecting the rights of third parties if Article III standing was met; the Windsor majority stating that hundreds of thousands of U.S. citizens would not receive thousands of federal benefits per a law’s discriminatory result and the courts would be slammed with litigation;
  • Chadha in 1983 stating the form that those other factors could be argued in (amicus briefs); the Windsor majority stating the BLAG amicus briefs demonstrated concrete adverseness a plenty;
  • Allen in 1984 spelling out what the prudential considerations could be; and Windsor majority noting that the person injured was the person at bar, that this was not a political question, and that a taxpayer’s refund was well within the zone of interests protected by DOMA (read marital estate tax deduction.)

The Opinion’s discussion on prudential standing at first blush was a little confusing, back and forth in case law reference, and misnomeric in places, but if it weren’t we wouldn’t have an entertaining dissent by Scalia.

Unravelling the Windsor Knot: Part 1 | Part 2

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