Proposition 8, standing and the Supreme Court

Supporters of California’s Proposition 8 may not even have standing to appeal a Federal Court ruling that the measure is unconstitutional:

Hardly anyone noticed when the U.S. Supreme Court said in 1997 that it had “grave doubts” that the sponsors of a ballot measure – in that case, an English-only initiative for government agencies in Arizona – had the right to defend the law in federal court.
Now that case could determine the future of same-sex marriage in California.
The Ninth U.S. Circuit Court of Appeals in San Francisco, which will hear arguments in December on a federal judge’s ruling that overturned Proposition 8, has asked both sides to address the question of whether the campaign committee for the November 2008 initiative has legal standing – the right to represent the state’s interests in upholding one of its laws.
The issue arises because Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to defend Prop. 8 in court. That was also the case in Arizona, where state officials refused to appeal a lower-court decision overturning a ballot initiative, and the measure’s sponsors then sought to defend it themselves.
Writing for a unanimous court 13 years ago, Justice Ruth Bader Ginsburg said state officials are normally the only ones who can defend their laws. There’s an exception, she said, when a state passes a law allowing its legislators to represent its interests. But Arizona has no such law, she said, and the sponsors of the English-only initiative “are not elected representatives.”
The court, however, resolved the case on other grounds and did not decide whether backers of an initiative can ever defend it in court.
Although the Arizona ruling remains an obstacle for Prop. 8’s sponsors, whether it dooms the measure is an open question, said Jane Schacter, a Stanford law professor.
The sponsors’ strongest argument, she said, is that elected officials shouldn’t be allowed to “undermine initiatives they don’t support by choosing not to defend them. That would raise questions about direct democracy.”
On the other hand, Schacter said, “elected officials, accountable to the voters, make litigation decisions for the state,” determining which laws to defend and which rulings to appeal.
The Prop. 8 case reverses the usual alignment in controversies over legal standing. The issue typically arises in disputes over the right to sue to challenge a law, with liberals arguing for broad authority and conservatives favoring restrictions.

More at, SCOTUSblog and The Volokh Conspiracy. If this case proceeds no further, it would effectively make same-sex marriage legal in California – and nowhere else. A victory for gay rights, or a missed opportunity?

6 thoughts on “Proposition 8, standing and the Supreme Court

  1. Eric - Diogenes Borealis says:

    I think it would be best for this case to remain as a California precedent only. The way forward for gay marriage in the US in my opinion is at the state level – as more and more states legalize it and people realize that it doesn’t mean the end of civilization as we know it, most people will come to accept gay marriage at the grass roots level. If the case goes to the 9th Circuit and then ultimately to the US Supreme Court and a ruling deems prop 8 to be legal, then it will set back gay rights not only in California but set a precedent for gay rights in other states. If, however, the Supreme Court rules that there is a constitutional right to gay marriage nationwide, it will provoke a backlash in conservative states against judges making policy from the bench and that will be just as harmful to gay rights in the long run. It may be slow, but in the US this is best handled on a state-by-state basis.

  2. Bruce says:

    The standing argument seems too cute by half.
    If the defendants don’t have standing to appeal then they didn’t have standing to litigate in the first place. There was no “case or controversy” and Judge Walker’s decision should be vacated on that basis.
    Turn the case on it’s head. Using Judge Walker’s logic the defendants would also have lacked standing to defend against an appeal had they prevailed at the trial level. Hence win or lose at the trial, they lose by default on appeal regardless of the merits of their case.

  3. Bruce Rheinstein says:

    The distinction between a defendant and a defendant-intervenor, which is what Judge Walker relies on, does not escape the case or controversy requirement of Art. III, Section 2, Clause 1 of the Constitution.
    For the court to have jurisdiction, the parties (even intervenors) must have standing and there must be an actual controversy. These are constitutional requirements that cannot be waived by a trial judge.
    The named defendants agreed that Proposition 8 was unconstitutional, which meant there was no controversy and hence no jurisdiction.
    The defendant intervenors argued that the proposition was constitutional, which means there was a controversy. However, if the intervenor-defendants lack standing then there was no jurisdiction and the decision should be vacated.
    The requirements for standing do not suddenly change from trial to appeals court. If a party met the requirements for standing at trial then they should meet it on appeal – absent the issue being rendered moot by subsequent events.

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