Rejecting Sovereign Immunity in Public Law Litigation

Howard Wasserman


In the litigation over marriage equality and the validity of laws prohibiting or declining to recognize same-sex marriages, one procedural complication and innovation has involved defendant standing - who can defend litigation challenging the constitutionality of state and federal rules, both at the trial level and on appeal from an adverse judgment. This essay argues that the dispute ought not be about standing, in the sense of Article III's requirement of a case or controversy between interested adverse parties with a personal state in the outcome of the case, because of the questionable doctrine of sovereign immunity under which the government entity cannot be sued by name in federal court. Sovereign immunity forces plaintiffs to sue executive branch officers responsible for enforcing a given law. The argument here is that plaintiffs should be able to sue the government by name when seeking to enjoin the enforcement of unconstitutional laws.