An artist's rendering shows attorney Theodore Olson, who opposes California's ban on same-sex marriage, addressing the high court on Tuesday. Associated Press

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.

Some experts say legalizing same-sex marriage nationally could spur economic growth. Quentin Fottrell reports.

Justices discussed scenarios in which California's Proposition 8 and the federal Defense of Marriage Act might fall not because the court found them unconstitutional in substance, but because the unusual journey of the cases left the court with no legitimate dispute to resolve.

And in an outcome sure to fascinate law professors—while frustrating many Americans—the resulting precedent would have nothing to do with gay marriage, but plenty to say about the relative powers of the executive and judicial branches.

At the root of the issue are the positions of the U.S. government and the state of California, both of which agree with plaintiffs that the challenged laws are unconstitutional.

After an appeals court struck down the Defense of Marriage Act, the Obama administration appealed the ruling to the Supreme Court, even though it agreed the act was unconstitutional. In the meantime, the administration continues to enforce the act. On Wednesday, Deputy Solicitor General Sri Srinivasan told the court the administration took that unusual step of appealing partly "out of respect for the role of the judiciary in saying what the law is."

What They Said


Transcript: Day Two


The implications, Justice Anthony Kennedy said at one point, could cause "intellectual whiplash."

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.

Chief Justice Roberts raised a scenario where members of Congress thought the president's lawyers were doing an incompetent job defending a law. "Is that a situation in which you have standing to intervene to defend the law in a different way than the executive?" he asked Mr. Clement.

Justices Stephen Breyer and Elena Kagan also expressed concern about Congress meddling with a president's legal strategy. "I can see arguments for and against it, but I can't think of another instance where that's happened," said Justice Breyer.

Shifting Support


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.

"Have we ever granted standing to proponents of ballot initiatives?" Justice Ruth Bader Ginsburg asked Charles Cooper, representing Prop 8 proponents. "No, your honor," he conceded. But, he added, a state might be able to deputize individual citizens to represent its interests.

Chief Justice Roberts expressed skepticism, saying that would mean states could define who has standing under Article III of the federal Constitution. "I don't think we've ever allowed anything like that," he said.

Some justices were more willing to give Mr. Cooper's clients legal standing. "In a state that has [voter initiatives], the whole process would be defeated if the only people who could defend the statute are the elected public officials," said Justice Samuel Alito.

In both cases, the court could find that the essential elements of a federal case are present—two parties with concrete interests that can be vindicated through litigation—and reach the core issues that have impassioned advocates and opponents of same-sex marriage.

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.