The Standing Issue on the Prop8 case

As well as hearing arguments on the Constitutionality of Prop8, the Supreme Court has asked to be briefed on the issue of "standing":  that is, whether the proponents of Prop8 have the right to appeal the decision, given the State's unwillingness to do so.

Some people think this may offer the court an "out" to avoid finding one way or the other on marriage. If the Prop8 supporters lack standing (since they can't demonstrate any actual harm to them caused by Prop8), the whole thing becomes rather messy, but remains limited to California.

From Linda Greenhouse at the NY TImes:

Standing has been an issue in the Proposition 8 case ever since the state of California decided not to appeal Federal District Judge Vaughn Walker’s 2010 ruling that the proposition was unconstitutional. The appeal to the United States Court of Appeals for the Ninth Circuit was carried on by a group of people who had worked to get the proposition adopted. The Ninth Circuit questioned whether this group had the requisite Article III standing, and asked the California Supreme Court to tell it whether under California law, a ballot measure’s proponents are regarded as properly standing in the state’s shoes if the state decides not to defend the measure. When the state court answered yes, the Ninth Circuit took the answer as sufficient and proceeded to decide the appeal, finding Proposition 8 unconstitutional. 

Whether standing under state law translates into standing for the purposes of Article III is a question that the United States Supreme Court has poked at but never resolved. Whether this is the right case in which to do so remains to be seen, but it was not particularly surprising for the court to raise the issue. In fact, in an era of direct democracy run amok, with voters being presented with extreme propositions that no rational state government would wish to embrace, a Supreme Court decision on who can carry the ball into federal court is probably overdue.

This was part of the appellate litigation for Prop8, so the existing attorneys have already briefed on this. 

Lyle Denniston at ScotusBlog tells us the court has identified an outside lawyer to argue the standing issue for the DOMA case.  The issue there is a little different than for Prop8, and I believe that it hasn't been part of the case previously, hence the outside lawyer.

Why we should wait

Jonathan Rauch argues for a minimalist finding, in a letter to SCOTUS:

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.... 

In the California marriage case, you certainly don’t lack for options. You could give gay-marriage opponents a home run, foreclosing gay couples’ constitutional claim for decades to come—a tragic setback, from a gay point of view. You could give gay-marriage supporters a home run, as a California district court did. You could uphold the narrower opinion of the Ninth Circuit federal appeals court, which overturned California’s ban on gay marriage but would have no practical effect in other states. 

Or you could do something you hinted at in your decision to take the case, when you asked to be briefed on whether the parties have standing to sue. That is, you could rule that the case was improperly brought and isn’t ripe for any kind of ruling. Though the precise legal consequences would depend on how you wrote the fine print, the basic effect would be to defer the constitutional battle over gay marriage until a later day. 

That day will come. We can even guess when. In 1948, California’s supreme court overturned the state’s ban on interracial marriage. It took the U.S. Supreme Court 19 years to affirm and nationalize that ruling, and by then the decision wasn’t controversial. In 1993, Congress banned openly gay people from serving in the U.S. armed forces. It took the courts and Congress 17 years to repeal that ban, and by then the decision wasn’t controversial. You see the pattern. Massachusetts enacted gay marriage in 2004. If the past is prologue, by the early 2020s the country will have reached a consensus on same-sex marriage.

 I think there is no chance the court will find broadly. I have hopes for a narrow overturn of Prop8, but I have a bad feeling that it won't happen.

 I think that they will uphold Prop8 and knockout DOMA's clause 3, based on the same arguments:  the states' rights to determine marriage.

That's my bet.

Update: Prop8 federal case: CA court says the opponents DO have standing to appeal

Amongst the many Prop8 ripples (see the graphic timeline for a refresher) is a request from the (Federal) 9th Circuit court of appeals to the California (state) Supreme Court, asking, "Yo! Should these proponents of Prop8 , who defended the case in the federal district court, be allowed to appeal Judge Walker's finding, given that the Governor and Attorney General of CA don't want to appeal?"

There is a lot in this: not every decision should be appealed and there is not a requirement to appeal.If you give people who have no "interest" in the case the right to appeal (meaning they can't demonstrate that THEY are harmed in any way by the decision), what sort of Pandora's box do you open?

And, just to complicate things further, the 9th circuit may say, "okay, California, that's STATE law, we'll still evaluate this under FEDERAL law." So it doesn't really matter either way.

But the California Court rules that yes, they do have standing.

Boies and Olson on Prop8

Attorneys Ted Olson and David Boies discussed the Prop8 case recently. While they want to restore marriage in California, their goal has always been to take the case to the US Supreme Court and legalize marriage for all Americans. Ironically, the question of standing might limit their options to do so.

Of course, marriage for all is better than marriage for some, but marriage for some is better than marriage for none.

From the HuffPo:

There is, legal experts say, a distinct possibility the Court could determine that there is no one qualified to defend the state's interests in arguing that Prop 8 should not have been struck down. Both the governor and the attorney general have refused to do so. If that's the case, then Walker's overturn becomes de facto law. That would be a victory for gay rights advocates, but a narrow one. While it would likely allow for same-sex marriage in California, it would not address marriage in other states.

"We set out to overturn Prop 8 so that hundreds of thousands of millions will be living under a regime in which Prop 8 does not exist and that kind of discrimination does not occur," said Olson. "We would love to have a unanimous decision by the Supreme Court striking it down on its merits but we don't have any choice."....

Boies, for his part, reiterated that the ultimate objective was to get a decision by the U.S. Supreme Court determining that any law abridging marriage was an infringement on the equal protection. If that were to happen, he said, "the issue would be fully resolved," across all states.

"The fundamental issue is that this is not something that ought to be decided politically," he said during the briefing. "It’s very encouraging to all of us that there is this shift in public opinion [in favor of same-sex marriage]. Even in the absence of opinion in public, the fact of the matter is the constitutional protections are clear."

The article goes on to point out that there are no other obvious cases as potentially as useful as CA, if they were to need to relitigate this issue.

But of course, it's entirely possible the Supreme Court would find against us (I don't trust them at all) and then we'd all be screwed.

I'll take a win, any time.

Updated: Important Prop8 appeal activity today

The Supreme Court of California will make an important ruling today on the Federal court case challenging Prop8.

Why is the STATE court involved in a FEDERAL case? because the 9th District Court of Appeals has two questions before it: one, how to address the finding of Judge Vaughn Walker that Prop8 is unconstitutional to LGBT citizens, and second, whether anyone has STANDING to appeal Judge Walker's decision.

Technically, because Prop8 was voted into law, the responsibility for defending it in court rests with the state of California. But neither the governor nor attorney general wants to defend it, because they agree it is unconstitutional. So the Prop8 proponents stepped it.

The Federal court is deferring to the State court to explain whether, under state law, the proponents have the right to appeal.

From the LA TImes:

Depending on the [state] court’s ruling, the 9th Circuit could either dismiss the Proposition 8 appeal on procedural grounds -- limiting the case’s effect to California -- or rule on federal constitutional questions that would affect same-sex marriage throughout the country.

UpdateA lot of fuss about very little. What they decided was.... they will take up the question. (They could have decided to ignore it). Wow. The notoriously slow SCoCal will now deliberate further, and probably won't even hold a hearing until fall 2011.

The delay here, while frustrating, means that repealing prop8 AT THE BALLOT BOX in 2012 is a much surer way to get marriage back in CA than waiting for the appeals process to work itself out.

Prop 8 update: response to appeal

The Prop 8 federal case is now in the appeal stage. The Bad Guys and their friends have filed appeals and amicus briefs that explain accuse Judge Walker of bias, reiterate the same old arguments they tried before, and throw in a few new ones (including spurious, fact-free claims). They try to introduce new evidence not presented at trial. They also have to explain why they have standing to appeal, in the absence of any state interest in defending Prop8. (There's a related appeal by Imperial County claiming that it should represent the state in defending Prop8 because they issue marriage licenses. Imperial County voted against us by about 70% and are represented by a Christianist legal group, the Advocates for Faith and Freedom.)

Our side has just submitted their rebuttal of the appeal. The response and more info are at the ever-helpful Prop8 trial tracker.

What can the Supreme Court mean when it says that our Constitution "neither knows nor tolerates classes among citizens," if a majority can so stigmatize a small, visible, and vulnerable minority and in the process cause such wrenching anguish? The American promise--and dream-- of equality surely means at a minimum that the government, before "drawing a line around" some segment of its citizenry and designating them unworthy of something as important and socially meaningful as the institution of marriage, must have a legitimate and factually tenable rationale for doing so. Proposition 8 fails even at this most basic level of scrutiny. It advances no legitimate purpose.

The stay will continue

No immediate prospect of legal marriages for gays and lesbians in California. The LA Times reports that the 9th circuit has continued the stay, and allowed for an expedited appeal by December.

"I think there are strategic reasons why even the most ardent supporter of gay marriage could opt for a stay," said [Loyola Law School professor Richard] Hasen, an expert on federal court stays. "The concern is that rushing things to the Supreme Court could lead to an adverse result [for supporters of gay marriage.] If this case takes another year to get to the U.S. Supreme Court, there could be more states that adopt same-sex marriage and more judicial opinions that reach that conclusion."

Update Although I thought this meant They have been given standing, I'm corrected by our friendly lawyer Paul (A), who quotes the order thusly:

"In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997)."

So standing is NOT a given at this time. make your case, lads!

For those tuning in late, "standing" here is whether a party is entitled to participate. Generally, the court has been fairly restrictive about it, so you can't appeal or enter into a case just because you are interested in it, but have to have a real "dog in the fight". In this kind of case, the "standing" belongs to the State of California, but the Governor and AG have decided not to appeal. So the question is, whether the Defendant-interveners who defended Prop8 have the right to appeal, since Prop8 in no way affects or injures them personally (I'm sure PaulA will correct me again if needed!)

Update 2: From Paul (A) in the comments:

Federal courts are limited by the Constitution to deciding "cases and controversies". Precedent has interpreted this to mean that actual parties who have a real stake in the outcome of the case must be represented on both sides. The Arizonans for Official English case held unanimously that proponents of a successful state initiative were not proper parties before the Supreme Court. The Proposition 8 proponents appear to be in the same boat. They will have to convince the Ninth Circuit Court of Appeals that this is somehow a different situation.

John Culhane blogs,

Standing might not be the most viscerally satisfying way of expressing judicial rejection of this ugly impulse, but in its way it affirms an important truth: Those who support initiatives aren’t the ones directly affected by them. Their ability to get enough signatures for the ballot, and then to play to primal fears (nativist, Christianist, and so on) to get their measures passed, can’t and won’t deter courts from discharging their constitutional duty.