Despite the crescendo of anticipation surrounding the looming showdown over same-sex marriage at the high court this week, it is possible the justices could decide the controversial cases without ever reaching the core issue of whether Proposition 8 in California and the federal Defense of Marriage Act (DOMA) violate the rights of same-sex couples.
Before the justices can take up those fundamental questions, they must first agree that the parties before them have the necessary legal standing to argue the cases, and that the court, itself, has jurisdiction to decide them.
It is a unique feature of the litigation in the Prop. 8 and DOMA cases that the government officials who are charged with the responsibility of defending the constitutionality of challenged laws have opted in both cases not to do so.
In the DOMA case, President Obama and Attorney General Eric Holder decided to stop defending the federal statute in court after concluding that it was unconstitutional.