Prop. 8, DOMA, And Standing In The Supreme Court

The Supreme Court's handling of standing in the two same-sex marriage cases likely seems contradictory to many outside observers.

Supreme Court Justices 2

The Supreme Court’s decision in Perry v. Hollingsworth, where it declined to rule on the substance of the case before it by determining that the non-government intervenors,   lacked standing to pursue either appeal has raised some interesting discussions. As a result of that decision, everything that has happened in that case since Judge Vaughn Walker issued his opinion has essentially become a legal nullity and, within a month or so, same-sex marriage will once again be legal in California despite the fact that, in 2008, a majority of Californians voted to make it illegal. One of the main reasons this will happen, some have argued, is that the Supreme Court ruled that once the elected officials of California decided not to defend the law, there was no way to test the constitutionality of Proposition 8 in the appellate courts. This is an issue that has, interestingly, raised concerns both on the left and the right.

Ed Morrissey, for example, put it this way:

The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage.  The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there.  However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome.  That to me is a more dangerous outcome than a precedent-setting decision on standing.

His co-blogger Allahpundit expanded on that argument:

Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.

There were similar arguments on the left, like this from Scott Lemieux:

[L]et me briefly say that while I’m happy Prop 8 will be struck down standing is the worst grounds for a good outcome: it’s a pernicious argument. The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law.

Kevin Drum, meanwhile, sees a problem with the fact that the Court’s decision gives elected officials an easy way to effectively nullify a referendum passed by a public that decided to bypass the legislative process:

In California, it’s routine for the people to pass initiatives that neither the governor nor the legislature supports. In fact, that was the whole point of the initiative process when it was created. In cases like these, of course the governor and legislature are going to decline to defend the law in court. With today’s decision, the Supreme Court is basically gutting the people’s right to pass initiatives that elected officials don’t like and then to defend them all the way to the highest court in the land.

To me, this has neither the flavor of justice nor of democratic governance, regardless of whether I like the outcome.

Admittedly, the Court’s decision that the Hollingsworth parties, who had originally been involved in the lawsuit as “Intervenors” because they were among the parties involved in getting Proposition 8 on the ballot in the first place, did not have standing to defend the law on appeal does raise some problematic issues. For example, it’s worth noting that when the case first reached the 9th Circuit Court of Appeals, that Court sent the case to the California Supreme Court for a ruling on the question of whether or not parties such as these have authority under California law to step in to defend the law when the Executive Branch declines to do so. California’s Supreme Court ruled that the did and, when that answer got back to the 9th Circuit that Court accepted the answer as sufficient to grant standing under Federal law so that it could rule on the merits of the case. The Supreme Court, on the other hand, rejected that argument and, most notably said this:

Petitioners argue that the California Constitution and its election laws give them a “`unique,’ `special,’ and `distinct’ role in the initiative process — one `involving both authority and responsibilities that differ from other supporters of the measure.'” Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d, at 1006, 1017-1018, 1030). True enough — but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to [*8] the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec. Code Ann. § 342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§ 9607-9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. § 9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§ 9064, 9065, 9067, 9069.

But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021. Petitioners have no role — special or otherwise — in the enforcement of Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not “possess any official authority . . . to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California. Defenders of Wildlife, supra, at 560-561.

Article III standing “is not to be placed in the hands of `concerned bystanders,’ who will use it simply as a `vehicle for the vindication of value interests.'” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” post at 4 (KENNEDY J., dissenting), that is not a particularized interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504 U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65 (“Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated.”); Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).

(…)

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

Perhaps if California law had contained a provision that essentially “deputized” the proponents of an initiative as a party authorized to defend it in Court in the event of a challenge that state law officials declined to defend in Court, the outcome of the case would have been different. In such a situation, it could be argued that the proponents were essentially acting as agents of the state, and the people of the state, in seeking to defend the Constitutionality of a duly enacted initiative. It’s hard to say if that would have made much of a difference, though. Federal standing law is incredibly technical and, quite often, used by Courts to dispose of cases that they’d rather not decide on the merits at a given point in time. Even without a “deputization” provision, though, it strikes me that there ought to be some method for some party to step in to defend a popularly passed initiative when it is challenged in Court and those in power in government decide to defend it. Even if Governor Brown and Attorney General Harris are correct in their opinion that the law was unconstitutional, and I believe that they are, and conceding the fact that Governor’s like President’s do have the discretion to decline to defend a law in Court if they believe it to be unconstitutional, something that has happened frequently in the past, there seems to me to be something not quite right with the idea of a law that a majority of the voters supported at the polls should die because nobody is willing to defend it. To make an analogy that is admittedly somewhat inapt, Courts would never let a criminal defendant go unrepresented, so I’m not sure why the same shouldn’t apply, somehow, to duly enacted laws.

The interesting thing about this question, of course, is that Hollingsworth wasn’t the only decision handed down Wednesday where there was a standing issue. There were similar issues in United States v. Windsor, the case challenging the Defense of Marriage Act, due to the Obama Administration’s decision in February 2011 to no longer defend DOMA in Court. When that happened, the House of Representatives stepped in and funded a defense on its own. The difference is that, this time around, the Court decided that the Congressional defense group via an office of the House called the Bipartisan Legal Advisory Group. Now, it’s worth noting that there had been situations in the past where Congress had stepped into defend a law when the Executive Branch declined to do so but, in those cases, the defense was endorsed by both Chambers of Congress. In the case of DOMA, only the House endorsed the defense. Nonetheless, the Court found that the BLAG did have standing to defend DOMA on appeal.

Here’s how Justice Kennedy addressed the issue in his opinion:

 In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of § 3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs.682 F. 3d 1 (CA1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA’s mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term “prudential” counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.

The Court’s conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Executive’s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, `[i]t is emphatically the province and duty of the judicial department to say what the law is.'” Zivotofsky v. Clinton566 U. S. ___,___ (2012) (slip op., at 7) (quoting Marbury v. Madison1 Cranch 137177 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment[*11] solely on its own initiative and without any determination from the Court.

Linda Hirshman thinks the Court is contradicting itself in these two holdings:

Maybe Hollingsworth was an honest commitment to the niceties of federal standing. But denying the Prop 8 advocates standing while extending it to the Congressional Republicans in Windsor is a little awkward. The policy argument the Court articulated to grant standing in Windsor—that the Court did not want the president to usurp their role of deciding constitutional cases by refusing to defend a law and destroying standing—applies with equal force to the California government in Hollingsworth. The Court’s role in deciding the constitutionality of state laws is as great, and almost as old, as its role in federal cases. Yet the Court just turned over to the governor of California the ability to destroy its jurisdiction to decide the constitutionality of Prop 8.

The incoherence of the two standing opinions, taken together, makes it more likely Hollingsworth was simply a decision to duck for a little while longer: There are a bunch of other direct challenges in the pipeline that don’t involve a standing problem

The obvious difference between Hollingsworth and Windsor, of course, is that one involves state law while the other involves Federal Law. It’s also worth noting that, while the Court has previously permitted Congress to step in to defend a statute on appeal when the Executive has declined to do so (see e.g., INS v. Chadha  462 U.S. 919 (1983)), it has never allowed a private party to step in to defend a state (or Federal) law, as Chief Justice Roberts notes in his opinion in Hollingsworth. Given the sometimes labyrinthine nature of Federal standing law, this is likely enough to withstand any real legal scrutiny and a sufficient answer to charges of logical inconsistency. At the same time, though, the different way that the almost identical standing issue was handled in two different decisions handed down on the same day is, as Hishman notes, awkward, and likely an indication that the Court was reluctant to issue the kind of groundbreaking opinion on same-sex marriage that ruling on the merits would have likely required them to at this particular time. That’s judicial restraint in action, but it only delays for another time the day on which the Court will have to handle this issue again. It may not come for several more years, but there will soon be another case before the Court that tackles the constitutionality of state-law bans on same-sex marriage directly. That one won’t have standing issues, and the Court will be required to rule on the merits.

FILED UNDER: Law and the Courts, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Dave Schuler says:

    I think that Justice Kennedy was correct in his dissent: the majority justices don’t understand initiatives or, possibly, oppose them on principle. A question that remains unanswered is why the plaintiffs who brought the suit before the lower court had standing.

  2. Ben says:

    A couple nits to pick:

    “declined to defend the law” – Not true. They did defend the law, at the trial level. They simply declined to appeal. Does every loser in court appeal every verdict?

    “can essentially nullify any law they don’t like” – Not true. Only a law that they can convince a judge is unconstitutional for one reason or another. That is a taller burden than any of the commentators are giving credit to. People bringing actions to invalidate a law don’t win by default. Laws are presumed constitutional. The burden of proof is on the party attempting to invalidate the law.

    So, my point here is simply that not all voter initiatives are in danger here. Only the ones that 1.) the state government doesn’t like and 2.) are a close enough constitutional question that a judge might rule it unconstitutional

  3. @Dave Schuler:

    The Plaintiffs were deemed to have standing because they were gay couples prevented from marrying under the law.

  4. @Ben:

    When the case was at trial, Arnold Schwarzenegger was Governor of California. His Administration defended the law. Jerry Brown, who was actually Attorney General at the time of the trial, wasn’t elected Governor until November 2010 and didn’t take office until January 2011. It wasn’t until then that the decision to not defend the law on appeal was made.

  5. OzarkHillbilly says:

    Ed Morrissey, “However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome.”

    While I am sympathetic to Ed’s point of view I have to point out that this not a good argument. There was another election in which the people of California decided that Governor Brown and Attorney General Harris would use their judgement in representing them in this and other cases.

    Elections have consequences and all that.

  6. Electroman says:

    @Doug Mataconis: Yes, that’s exactly what happened. In fact, that’s what Ben said, except for the addition of the identity of the Governor at the time. From the standpoint of the legal process, why is that relevant?

  7. Ben says:

    @Doug Mataconis:

    When the case was at trial, Arnold Schwarzenegger was Governor of California. His Administration defended the law. Jerry Brown, who was actually Attorney General at the time of the trial, wasn’t elected Governor until November 2010 and didn’t take office until January 2011. It wasn’t until then that the decision to not defend the law on appeal was made.

    Correct. And … ? In what way is that relevant?

    My point stands. The law WAS defended. Period. End of sentence. Are we going to say now that not only does the executive have the duty to defend the law in court, he also has the duty to fully appeal all negative decisions as far as he can go? Is that really the rule we want?

  8. Dave Schuler says:

    @Doug Mataconis:

    You’re making the argument that Justice Scalia did in his dissent. Unless you assume a Fourteenth Amendment right, there is no standing there.

  9. HarvardLaw92 says:

    @Ben:

    My point stands. The law WAS defended. Period. End of sentence. Are we going to say now that not only does the executive have the duty to defend the law in court, he also has the duty to fully appeal all negative decisions as far as he can go? Is that really the rule we want?

    I’m inclined to agree with Ben here.

  10. @Electroman:

    Because Brown (and Kamala Harris) chose not to defend the law, thus creating the standing issue

  11. @Ben:

    The argument would be that it is, at best, awkward, to have laws struck down by District Court Judges without any opportunity for an appeals court to step in.

    It also raises the question of why there should have been a difference between the outcome of the standing issue in Hollingsworth and how it was dealt with in Windsor.

  12. @OzarkHillbilly:

    One argument is that initiatives are often passed over the objection of those in power. If they can then turn around and decline to defend the law if it is challenged in Court, they can effectively make the initiative power a nullity.

  13. JWH says:

    Wait a minute. If I understand the Hollingsworth posture correctly, doesn’t it still leave Californians with the ability to compel their state government to act on an initiative by bringing action in state court?

  14. Ben says:

    @Doug Mataconis:

    One argument is that initiatives are often passed over the objection of those in power. If they can then turn around and decline to defend the law if it is challenged in Court, they can effectively make the initiative power a nullity.

    Even if the state doesn’t defend the law, doesn’t mean it’s going to get struck down. You’re making it sound like you can get a District Court judge to strike down any law for any reason. It’s not that easy. This law was struck down because the challengers had a very good argument that it was blatantly unconstitutional. I don’t think all referendums/initiatives have the same problem.

  15. Moosebreath says:

    @Doug Mataconis:

    “If they can then turn around and decline to defend the law if it is challenged in Court, they can effectively make the initiative power a nullity.”

    I dislike the initiative power in general (and am always amused when people who often rail against legislative decisions which impact rights as the “tyranny of the majority” support it), but I agree with this.

  16. PD Shaw says:

    @OzarkHillbilly: I disagree. The modern purpose of the initiative is to bypass the electoral process, no doubt because Californians are forced to choose between one party consisting of corrupt or incompetent politicians and another party that is worse, the California Republican party.

  17. HarvardLaw92 says:

    @Doug Mataconis:

    The argument would be that it is, at best, awkward, to have laws struck down by District Court Judges without any opportunity for an appeals court to step in.

    Again, which raises the question: must every single decision that goes against the state’s position on initial hearing be appealed? Where is the justification for pushing that stance?

    It also raises the question of why there should have been a difference between the outcome of the standing issue in Hollingsworth and how it was dealt with in Windsor.

    Windsor was defended by government officials acting within the scope of their official role. Hollingsworth was defended by civilians. Big difference there, and a distinction which Karcher v. May has already made abundantly clear IMO.

  18. HarvardLaw92 says:

    @Doug Mataconis:

    If they can then turn around and decline to defend the law if it is challenged in Court, they can effectively make the initiative power a nullity.

    Again, Perry WAS defended, vigorously, at initial hearing. Beyond that, Karcher suggests that the subsequent vote to elect different executives in California expressed on some level the intent of the people to abandon the course hewed by the outgoing executive. Perry got its day in court. It was defended.

    Are we really arguing that every single initiative must be defended all the way to SCOTUS, each and every time one is challenged?

  19. @Ben:

    But, you will agree, that District Court Judges can be wrong, right? Hence the reason we have appellate courts?

  20. @HarvardLaw92:

    Are we really arguing that every single initiative must be defended all the way to SCOTUS, each and every time one is challenged?

    No, but do we want to rely solely on District Court Judges to determine if a law is Constitutional? Appellate Courts exist for a reason.

    Also, why shouldn’t the intervenors have been permitted to defend Prop 8 on appeal when Congress, via outside counsel, was permitted to do so in Windsor? Like I said, standing often seems like an easy way for Courts to easily dump cases they’d rather not rule on.

  21. @Moosebreath:

    I’m not a huge fan of initiatives either, especially the way they do them in California and many states out West.

  22. PD Shaw says:

    @Ben: Was the law struck down? I’m not sure about that.

    What state officials will say when they are “defending the law,” is that they are defending government prerogatives and/or protecting the state’s interest from overbroad rulings. I’ve been involved in cases where the state won and immediately threatened to appeal if the ruling was not re-written. The State has broader interests than the narrow objectives of some of the other parties. One of the objectives that I would say applies here is making sure California law is clear for the entire state, not just the law at it applied to the parties to the district court action.

  23. @JWH:

    Not being well briefed on California law, the general position is that Chief Executives have wide discretion in this area.

  24. HarvardLaw92 says:

    @Doug Mataconis:

    No, but do we want to rely solely on District Court Judges to determine if a law is Constitutional? Appellate Courts exist for a reason.

    We’re not relying on them. We’re relying on the judgment of the officials that we elected to govern us. If we dislike their actions in that regard, we have the opportunity to replace them at the next election.

    Which, not entirely incidentally, Californians voted to do, by wide margins, in electing Brown et al.

    Also, why shouldn’t the intervenors have been permitted to defend Prop 8 on appeal when Congress, via outside counsel, was permitted to do so in Windsor? Like I said, standing often seems like an easy way for Courts to easily dump cases they’d rather not rule on.

    Again, read Karcher. Once, the initiative had been passed, it became state law, and therefore the responsibility of the duly elected governing officials. Proponents had fulfilled the extent of their role the second that the election ended, and as they are not government officials, they have no proper further position in the daily decisions of government. We’re not a direct democracy.

  25. stonetools says:

    SCOTUS, since the time of Rehnquist, has been trying to narrow access to the courts by increasing standing requirements. Its been a long standing conservative project, so conservatives disappointed with the Prop 8 result are getting what they always wanted. Serves them right.
    I am of the realist view of standing, which is that courts often use standing as a way of avoiding having to decide a case on the merits. Maybe what happened here is that 5 Justices just did not want this case decided on the merits, so they came up with some standing argle-bargle, to use Nino’s phrasing.

  26. HarvardLaw92 says:

    @stonetools:

    Maybe what happened here is that 5 Justices just did not want this case decided on the merits,

    I’d delete the maybe. It’s pretty clear that they didn’t want to reach the merits in Hollingsworth, so they found a way to avoid doing do.

    o they came up with some standing argle-bargle, to use Nino’s phrasing.

    Scalia joined with the majority opinion in Hollingsworth. Given what I know about the man, it also seems pretty clear, at least IMO, that:

    Roberts didn’t want the controversy

    Ginsburg didn’t want a sweeping ruling which conflicts with her view of incrementalism

    Scalia didn’t want gay marriage period, so he joined the ship most likely to give him at least some degree of that outcome.

    Kagan and Sotmoayor read the tea leaves and figured that California alone is better than nothing at all, so they joined as well.

    They punted, IMO because their own reasoning in Windsor would have made a decision on the merits in Hollingsworth pretty inevitable in favor of respondents.

  27. Jeff Bishop says:

    If memory serves, then-AG Brown made no effort to defend Prop 8 at the District Court level, either. The state was named as a party, but the intervenors did all the arguing.

    I could *almost* understand a ruling that proponents of an initiative lack standing to defend the law because only the executive branch may do so, not citizens acting as de facto legislators. But if that were the rule, the standing issue under DOMA should have gone the same way.

  28. @HarvardLaw92:

    Everything you (and Karcher) say about Proposition 8 arguably also applies to DOMA. And yet, we got two arguably contradictory rulings on standing.

    As I note in the post, there are some differences between the two situations but I’m not sure that there sufficient enough for the different outcomes.

  29. HarvardLaw92 says:

    @Doug Mataconis:

    Everything you (and Karcher) say about Proposition 8 arguably also applies to DOMA. And yet, we got two arguably contradictory rulings on standing.

    Exactly. Windsor was permissible because the intervenors were currently sitting government officials, specifically members of Congress.

    Had BLAG been employed by former members of Congress, such as some of those who voted in the 1990s to approve DOMA, then it would have (or at least permissibly could have) been rejected on the same basis as Hollingsworth.

    The obvious, but unstated, conclusion to this is that there is potentially a role for sitting state legislators to intervene when the executive refuses to do so. That, however, doesn’t deputize AverageAngryCitizen to step in whenever he/she desires.

  30. @HarvardLaw92:

    Considering only one House of Congress backed the defense, I’m not sure that distinction is as easy as it seems on paper.

  31. @Jeff Bishop:

    The defense was provide via the Governor’s office. The case was fully litigated at the trial level.

  32. stonetools says:

    @HarvardLaw92:

    They punted, IMO because their own reasoning in Windsor would have made a decision on the merits in Hollingsworth pretty inevitable in favor of respondents.

    My take? SCOTUS is going to punt on state challenges to anti-SSM laws until there is considerable political momentum to do away with those laws. They MAY overturn Section 2 of DOMA in the next few years, but that’s as far as they’ll go.

  33. HarvardLaw92 says:

    @Doug Mataconis:

    And there is room to argue that one, but I’d say that the distinction between a sitting legislator and John Q. Plumber is pretty glaring in the context of acting as an agent of the state.

  34. HarvardLaw92 says:

    @stonetools:

    Barring a shift in the makeup of the court. I tend to agree. It’s not a question of IF, but instead one of WHEN, this finally gets resolved in favor of unilateral SSM.

  35. stonetools says:

    @Doug Mataconis:
    I agree with you that the reason for the inconsistency lies in court politics, more than the law (They just didn’t want to go all 50 states now).

    there will soon be another case before the Court that tackles the constitutionality of state-law bans on same-sex marriage directly. That one won’t have standing issues, and the Court will be required to rule on the merits.

    I think the courts will become pretty creative about refusing to decide these cases until there is significant political movement on the issue at the state level. I think changes in the court may also play a role in when the courts reach these issues on the merits.

  36. PD Shaw says:

    It seems to me like we have a coverage gap between state and federal law:

    Federal law: The DOJ is required to report to Congress its intention not to defend a law “within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding, but in no event later than 30 days after the making of each determination.” (28 U.S.C. Sec. 530D)

    California law: “[W]hen the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.” Perry v. Brown (California supreme court on certification of question)

    I tend to agree with the minority here. Its true that state law cannot create federal jurisdiction, but federal courts often look to interests created by state law to determine whether it is deserving of recognition in federal court. I’ll go with the majority punted on same-sex orientation, but going forward I think Congress needs to pass a federal law recognizing the standing of initiative proponents.

  37. stonetools says:

    @PD Shaw:

    but going forward I think Congress needs to pass a federal law recognizing the standing of initiative proponents.

    Agree with you here, but doubt this Congress will take any action to expand standing. The best hope may be to put another Californian or Westerner on the SCOTUS.

  38. Ben says:

    @stonetools:

    My take? SCOTUS is going to punt on state challenges to anti-SSM laws until there is considerable political momentum to do away with those laws. They MAY overturn Section 2 of DOMA in the next few years, but that’s as far as they’ll go.

    If they overturn section 2 of DOMA, then state bans on gay marriage are completely moot. Any couple can just pay a couple hundred bucks to fly to a gay marriage state for an afternoon, get married, then come home and hold their real wedding, and their home state will have to recognize it. It’s no real barrier at all.

  39. stonetools says:

    @Ben:

    and their home state will have to recognize it.

    Dunno if they will HAVE to. Sounds like a lawsuit right there. I don’t think that things will be that easy.

  40. mattbernius says:

    @Doug Mataconis:

    Also, why shouldn’t the intervenors have been permitted to defend Prop 8 on appeal when Congress, via outside counsel, was permitted to do so in Windsor?

    I think this is a very good point.

    One question that it leaves — and I don’t know the answer — is when outside counsel is permitted to argue a case in the place of the State, is the state responsible for compensating the defense?

    And argument, though I don’t necessarily think is an honest one, is that given the fact that California was/is in a budget crisis, should a state be forced to pay for a defense which they don’t believe they will win?

    @PD Shaw:

    I’ll go with the majority punted on same-sex orientation, but going forward I think Congress needs to pass a federal law recognizing the standing of initiative proponents.

    On that I definitely agree.

  41. HarvardLaw92 says:

    @Ben:

    If they overturn section 2 of DOMA, then state bans on gay marriage are completely moot. Any couple can just pay a couple hundred bucks to fly to a gay marriage state for an afternoon, get married, then come home and hold their real wedding, and their home state will have to recognize it. It’s no real barrier at all.

    Not really. In that instance you run into comity exceptions with respect to public policy. States can’t necessarily be compelled to recognize the acts of other states when those acts conflict with their own.

    What the overturn of Section 2 (which I agree needs to fall on an equal protection basis) will segue into is a challenge to the public policy exception itself with respect to SSM (as being predicated in animus). Section 2 falling won’t settle the issue. It will begin the fight.

  42. OzarkHillbilly says:

    @Doug Mataconis: @Doug Mataconis:

    One argument is that initiatives are often passed over the objection of those in power. If they can then turn around and decline to defend the law if it is challenged in Court, they can effectively make the initiative power a nullity.

    You missed my point Doug. First off, Brown and Harris were not the elected officials in power who objected to the initiative when it was passed. When the voters of California elected Brown and Harris, they were effectively saying “Maybe we made a mistake.”

    And while I am not privy to CA politics, I do find it hard to believe the voters of CA did not know their respective positions on the issue. It was a pretty big deal.

  43. PD Shaw says:

    @mattbernius: As I think I opined yesterday, I don’t think the state’s legal costs for this type of appeal are that large, particularly if it doesn’t want to do much. It could have just re-written its trial brief and let the amicus parties duke it out.

    But I saw a reference to this California opinion in which it appears that a plaintiff who invalidates a statute can be awarded reimbursement of their attorney’s fees. That might have some interesting implications. First, it suggests the state has a pecuniary interest in defending these suits. Second, it may have an interest in avoiding a multiplicity of suits. Third, it may have a countervailing interest in limiting the opposing party’s litigation costs. Fourth, it may not want to simply rely upon intervenors, because the linked case states that even if the state barely defends a law, the intervenors do not pay the attorney fees, its the state:

    Our observation that the state agencies in this case largely declined to defend the challenged statutes does not imply that these agencies committed misconduct. Although under article III, section 3.5 of the California Constitution, state agencies are obliged to continue to enforce statutes that appear to them to be unconstitutional, whether they have an obligation to defend such statutes in court is a complex issue, which we need not decide here. Nonetheless, the state, through its elected representatives, possessed the power, and indeed the exclusive power, to abandon or change the statutory scheme. Because it declined to do so, the burden of paying Connerly’s attorney fees is properly imposed on the state, rather than on an amicus curiae that steps into the breach to advocate for the undefended statutes

  44. OzarkHillbilly says:

    @PD Shaw:

    I disagree. The modern purpose of the initiative is to bypass the electoral process, no doubt because Californians are forced to choose between one party consisting of corrupt or incompetent politicians and another party that is worse, the California Republican party.

    Actually, we agree, but to elaborate further on @OzarkHillbilly: let me repeat that I am sympathetic to the idea that somebody should have been able to make the appeal. I am just saying that the voters of CA said “We don’t want to pay for it.”

  45. Matt Bernius says:

    @PD Shaw:

    I don’t think the state’s legal costs for this type of appeal are that large, particularly if it doesn’t want to do much. It could have just re-written its trial brief and let the amicus parties duke it out.

    I may have missed this in your response yesterday. Thanks for reiterating it.

  46. DRE says:

    (Copying my comment from a different post)
    The reason that Prop 8 can not be defended at the appellate level is that there is no appellant who can show they are harmed by the failure to enforce it. State officials could have appealed based on the harm to the initiative process, but they validly decided that the harm to equal protection was greater than the harm to the process.

    If proposition 8 had any valid purpose then the proponents could have shown the harm to themselves of the failure to enforce this particular law. They were not able to do so. The fact that they were not able to do so was the basis for the district court decision that it failed even a rational basis test. The Supreme courts decision was not “just” a technicality, it was a silent confirmation of the district courts finding (though not of all his reasoning). It does not set any dangerous precedent for the initiative process, because any law with any valid purpose will have appellants who can show some harm related to the actual initiative, rather than just to the initiative process.

  47. HarvardLaw92 says:

    @OzarkHillbilly:

    And while I am not privy to CA politics, I do find it hard to believe the voters of CA did not know their respective positions on the issue. It was a pretty big deal.

    Both Brown and Harris ran, among other positions, explicitly on refusing to defend Prop 8 if they were elected.

  48. David in KC says:

    @DRE: This. When you pass a law denying rights to a group of people, the odds are you can’t show harm if you are in the class not affected. At that point, it’s only the state that has standing in federal court. As for the DOMA case, while not as clear cut as the case where both the senate and house agree to defend the statute, the federal law clearly states the house and/or the senate can step in if the executive branch declines to defend the law.

  49. fred says:

    In the annals of American and Black History, Clarence Thomas will go down as the classic example of what describes an Uncle Tom in the American vernacular. How did this man ever get on the SCOTUS?