By Donald Scarinci | December 26th, 2012 - 11:40am
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What does New Jersey’s attempt to overturn a 20-year federal ban on sports gambling and same-sex couples’ efforts to legalize gay marriage have in common other than that they have both been in the news over the last few weeks?

The first similarity is the lawyer spearheading the efforts, Theodore Olson. Olson, a solicitor general under former President George W. Bush, has been retained by the state of New Jersey to help mount a constitutional challenge against the Professional and Amateur Sports Protection Act, which prohibits sports gambling in all but four states. He will also lead oral arguments before the U.S. Supreme Court in Hollingsworth v. Perry, which challenges Proposition 8, California’s voter-approved ban on same-sex marriage.

Both cases also highlight the importance of standing. In the same-sex marriage cases, procedural issues could allow the Supreme Court to issue a decision without getting to the heart of the issue. That is because opponents of same-sex marriage are waging the appeals rather than the state and federal officials who were first named in the lawsuits (in both suits, they chose not to appeal lower court rulings in favor of same-sex marriage.). For example, the Court could rule that the sponsors of Proposition 8 are not the proper parties to bring the Hollingsworth case to the Supreme Court, without ever determining if the law is constitutional.

Similarly, the New Jersey lawsuit argues that the NCAA and the four professional sports league challenging its plan to permit sports betting also lack standing, albeit on different grounds. The state argues that they have failed to show that they will be harmed, a prerequisite for filing suit.

Lastly, and perhaps most importantly, the cases have the potential to create new legal precedent that will impact the entire country. If New Jersey is successful in invalidating the ban on sports wagering, other states will likely follow its lead. California already has legislation pending to legalize sports gambling in its state. Proponents of legalizing sports gambling argue that it will create jobs and boost local and state economies.

Assuming that the Supreme Court does reach the merits of the same-sex lawsuits, the historic decision will likely impact the legal rights of millions of Americans. Overturning the Defense of Marriage Act could result in federal recognition of same-sex marriage. Meanwhile, overturning California’s Proposition 8 would be instrumental in invalidating other same-sex marriage bans.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

 

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