California Supreme Court To Answer Prop 8 Question from 9th Circuit: ANALYSIS

In Arizonans, the governor and attorney general declined to defend a law created by citizen initiative. The Ninth Circuit held that proponents had standing to appeal a decision striking down the measure, but when the Supreme Court decided to vacate that opinion on other grounds, Justice Ginsberg, writing for the entire court, expressed “grave doubts” about proponents’ standing. In Karcher, the Court said it had “recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests,” but in Arizonans, it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.”

So, the issue in the certified question to the California Supreme Court in the Prop 8 case is whether California law allows initiative proponents to be considered "agents of the people" and able to defend Prop 8 on appeal.

Ted Olson and David Boies argued that the 9th Circuit need not certify the question because regardless of what state law has to say, standing in a federal court is a matter of federal law. If the Prop 8 proponents cannot identify a real or "particularized injury," regardless of whether California law anoints them agents of the people, there can be no standing to appeal Judge Vaughn Walker's original ruling striking down Prop 8.

I agree with Mssrs. Olson and Boies and a plethora of constitutional scholars. Having spent a number of years arguing standing on appeal — usually to keep lower court plaintiffs out of court — I have always argued that standing in federal court is incumbent upon the petitioning party experiencing real and particularized injury as a result of the adverse lower court ruling. In this context, experiencing an "injury" means being harmed in some way or being ordered to do something. It's easy if a party is ordered to pay $10 million for breach of contract or if a party is being sent to jail for committing a crime. Those are real and particularized injuries. But, it is not clear what real injury Protect Marriage dot come felt when Judge Walker ordered the State of California to open up marriage rights to same-sex couples. And, the State doing something you don't like does not count as real injury.

In any event, even if Protect Marriage dot com believes that it was harmed by Judge Walker's ruling, the fact remains that standing in a federal appeal is a matter of federal law — "real, particularized injury." That would make California law about initiative proponents' rights a necessary, but not sufficient, element for standing. It is necessary to the extent that dicta Arizonans suggests that state law could deny initiative proponents the right to step into the attorney general's shoes, but it is not sufficient in that they would still have to satisfy the particularized injury requirements for standing.

It is possible, however, that Arizonans represents a separate standing structure for citizen initiatives under the theory that the people who organized initiatives or referenda need not show direct injury or that the mere fact that the law they created was overturned is injury enough. I think that is a gross bastardization of standing principles and one that is unlikely to be accepted by an increasingly conservative federal judiciary. It is a bastardization because it is a long-settled rule that average citizens or taxpayers do not have standing to challenge laws they do not like. Plus, conservative legal scholars have been restricting standing principles — which were used liberally to permit challenges to antiquated or oppressive laws during the Warren Court — since the 1970s, so to accept a liberal standing rule in cases simply because the underlying law comes from the initiative process would be to elevate initiatives above other duly enacted laws for no apparent reason.

Nevertheless, that the question was certified and that the California Supreme Court is answering it is probably a good thing. At a minimum, Arizonans suggests that state law is relevant to initiative proponents' standing. Had the 9th Circuit considered the question without asking for California's help, the court would be risking a remand from the U.S. Supreme Court.

What happens now? The California Supreme Court portion of this case will continue through the rest of 2011, with briefing, oral argument and a decision scheduled for April/May, September and December/January 2012, respectively. During this time, marriage equality is on hold.

We are reminded: Patience is a virtue.


  1. Boom says

    serious question: what do conservatives hate more, liberal standing principles or marriage fairness? i’m quite enjoying how Prop 8 proponents and adherents (who actually care about the legal issues) are forced to swallow broad standing to advance their position.

  2. Ian says

    @BOOM. You are right. It is a serious question. The hypocrisy is amazing but not surprising. I do quite enjoy how conservative’s prior efforts to limit “Standing” is biting them in the a** now. So naturally, in the effort to enforce a “conservative” i.e. bigoted proposition, they must abandon their conservative position on “Standing”. But it may be too late, LOL. It’s not surprising because prop8 is fueled by hate and bigotry which being irrational emotions will always trump legal questions which require actual rational thought.

  3. bravo says

    Ari Ezra Waldman’s analyses are perfect. Easy to read, understandable to the non-lawyer audience, and filled with added insights.

    One of the best features of Towleroad!

  4. Tom in long beach says

    All of this is so unfair. Once again Equality is put on hold. It should have ended with Judge Walker’s ruling.

  5. Sargon Bighorn says

    So because The Governor and the Secretary of state at the time (Brown) declined to defend proposition 8, those hate groups that floated the proposition cried that they should be able to stand in the place of the Gov and the Secretary. Hmmm I suspect the Judges will say that the hate groups can act in the stead of the Gov. and work to defend Prop8 in court. That’s my guess.

  6. anon says

    There is a huge problem with the B and O strategy. Namely, if standing is dropped then only CA gets marriage equality. The other states are unaffected. If, as Olsen states, this is a fundamental right, then they should be willing to fight this all the way to the SC. Their current strategy is essentially just getting them out of Dodge lickity-split.

  7. RWG says

    @anon: Having marriage equality in the state which forms 10% of the entire population is no small victory. Add in Maryland, Rhode Island and quite possibly New York State, and all the momentum will be on the side of equality. The haters and bigots are making their last stands.

  8. VEERS says

    I agree it would be nice if they’d have just pursued the strategy that got them to SCOTUS examining the merits of the marriage equality arguments ASAP, but they have a duty to their clients and their clients don’t really care (legally speaking) if Idaho has marriage equality. This strategy is probably the best for making certain Judge Walker’s ruling in favor of their California clients stands.

    At least Walker’s ruling creates a precedent for federal judges in other circuits or other courts in the 9th to examine, even if it doesn’t require them to rule the same way.

  9. Zlick says

    Also @Anon: Following the letter and spirit of the law, wherever it may lead, is not “strategy” for excellent lawyers like Olsen and Bois: It’s simply what they do. And what they must and should do.

    In this case, federal law decrees that the Prop 8 Proponents do not have standing to appeal. That may leave the decision limited to California, but we should be no more willing to abandon the law for our own value judgments than bigots are willing to abandon the Constitution for theirs.

  10. says

    @anon: actually, mssrs. olson and boies have said quite clearly that if they win in california, but only in california, they (and AFER) will continue their mission to find another case that will bring marriage equality to the supreme court. so, i respectfully disagree with your assessment of their strategy, motives and goals.

  11. Dana Chilton says

    Ari is brilliant. I really appreciated the thorough review of what happened. However, this case will be moot after 2012 when the proposition is repealed. The court did not not really fast track the certification of the proposed question. The court could have answered the question immediately but instead chose to hold a briefing and oral arguments knowing full well that the 2012 election was coming. Our courts can work with lightening speed if an issue is thought to be important enough. How long did Bush v. Gore take? Even if prop 8 is not repealed in 2012 this case will still be in the courts in 2014 (The path through the 9th can take many many years) It is all but certain to be repealed by then. Fact is, this certified question has NOTHING to do with federal standing and will still be a matter of debate among the 9th and among the members of SCOTUS. This yearlong debate solves NOTHING but harms many.

  12. jack says

    i for one would be quite happy to see this end in california and then look for another case better suited to take to the supreme court, and, in no small measure, hoping against hope that one or more of the conservative judges finds it necessary to exit the court. at present the pressure on kennedy is too much, and i think he will fold, making for a much longer in implementing federally recognized civil marriages.

  13. Strepsi says

    When so much of the current political news is legalistic — and so many pundits and politicians talk out of their asses about laws and Constitutional rights — I truly appreciate getting an actual legal insight and breakdown. Towleroad is providing actual information, in a way that CNN and FOX and MSNBC *should*

    Thanks for this series.

  14. michael says

    That’s bad news. I cannot believe this is taking so long to decide this case…common sense here…another person shouldn’t be able to control another’s life and to get married. Another year will go by…taking this long is a bad sign for marriage equality.

  15. says

    @sdv: thanks for reading and thanks for your comment! when you get down to it, that is the crux of the question. in these two previous cases, karcher and arizonans, the issue was, in part, whether there was some state law that even allowed other people to step into the shoes of the state when the atty general or governor refuse to defend a statute in court. if the state does allow it by statute, then they can go ahead; if the state does not provide for anyone to step into the states shoes, then they cant go forward. many of us believe that even if there was a california law that says initiative proponents can step into the shoes of the state — which there isnt, by the way — it wouldnt matter because for standing to exist in a federal case, you have to show a real or particularized injury, which the prop 8 proponents cannot show. so, a california law allowing them to step into the states shoes would be a necessary step, but not a sufficient one, for granting standing. i hope that clears it up, and my apologies if i was confusing.

  16. Rich says

    Getting marriage equality for California alone is valuable because it does set up the next case: extending full faith and credit recognition to marriages performed in any state. While the delay is more than regrettable, the longer one can keep the matter out of SCOTUS, the more likely a favorable outcome.

    As a mortal, I’d like my rights now. But if I can’t have that, I’d like to secure them for the next generation.