Prop 8 Ruling ANALYSIS: State Law, Standing, and What’s Missing

Still, as a jurisdictional requirement, standing should not be taken lightly or granted on the back of flimsy precedent. Departing from Supreme Court precedent of Karcher and Arizonans for Official English, the California Supreme Court ignores the fact that there is no state law that grants initiative proponents the power to defend their initiative in court. Instead, it relies on a tradition of expansive initiative rights, of a history of initiative proponents defending their creations, and the state's liberal standing rules to prophylactically create an "unbroken tradition" of standing. But, that tradition derives exclusively from state cases — initiative proponents defending their law in state court.

Prop8When the Ninth Circuit first certified the question of standing to California's highest court, it noted that it would follow the decision of that court. Most commentators believe that because of that promise, the Ninth Circuit is unlikely to do anything but recognize ProtectMarriage's standing in Perry. But, it need not. Just because state law would allow initiative proponents to step in does not necessarily mean that federal law would do the same. As Ted Olson noted on a post-decision release press conference call, "the issue of standing is still in this case;" the Ninth Circuit is simply unlikely to do its duty. In fact, if AFER wins at the Ninth Circuit, it will try to argue that the Supreme Court should not take the case because initiative proponents never had standing. What's more, if the case does reach the Supreme Court, the justices themselves are free (and are likely) to address the jurisdictional question of standing from the beginning.

Regardless of the California Supreme Court's obfuscation, federal standing is still a matter of federal law and no number of state cases can influence federal law.

California gets around this fact by arguing that there are two independent bases for federal standing: the state's interest or the particularized interest of the moving party. Today, the court found that California initiative proponents should be able to step into the shoes of the state, i.e., take over the state's interest, when the arms of the state refuse to defend the particular law the proponents wrote, proposed, and helped enact. As such, a particularized interest, which requires a specific harm, is unnecessary. Even if that were an accurate description of federal standing law, the question of proponents' authority to take up the state's interest cannot be fully answered by state law.

That is true, especially in this case, where the people seeking to fill in for the state are not elected officials and there is no explicit state statute that grants them the authority to assume the state's interest. That gaping abyss in the California Supreme Court's decision does not matter to the judges of that court; after all, they argue, California has a long tradition of granting expansive rights to defend ballot initiatives to their proponents. But, that long tradition exists only in the state courts of California.

In the end, even though this opinion is of dubious merit, we should see the silver lining. We now have the opportunity to take a solid case for the unconstitutionality of a same-sex marriage ban to a friendly panel on the Ninth Circuit. And, that opportunity should come quickly. The Ninth Circuit had this case fully briefed over a year ago and, therefore, should be able to issue its decision on standing and merits relatively quickly. The next steps — depending on which side emerges victories — could see AFER's team of Ted Olson and David Boies before the en banc Ninth Circuit or at the Supreme Court, arguing for marriage equality on the stage of One First Street.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.


  1. David says

    “It is a victory for pro-same-sex marriage forces in that we are now poised for a full victory on the merits, rather than a half victory on standing.”

    Ari, I am really embarrassed for you. You are an intelligent man. Why do you insist on making a fool of yourself with lines like this? This is like the Germans crowing that the loss of Stalingrad is a really great victory b/c now their supply lines will be so much shorter. Pathetic. If the outcome is such a great victory, then why didn’t AFER simply concede the standing issue to begin with? Why spend a million dollars and a year fighting on an issue that you wanted out of the way to begin with?

    Stop embarrassing yourself and stop passing off condescending spin as legal analysis.

  2. says

    David obviously didn’t read the analysis or what AFER has to say about the issue, and simply has a bone to pick with Ari. Looking forward to seeing this go all the way.

  3. Fodolodo says

    I’m not sure I follow the argument of this post. It’s true that a tradition of initiative proponents being permitted to intervene in California courts does not determine the federal standing question. But the court didn’t say it did. Instead, it found that the purpose of the constitutional right to propose initiatives (bypassing public officials who disagree with the public) implied a right for initiative proponents to independently represent the state’s interest in an initiative. The California tradition of permitting initiative proponents to intervene (and the suggestion in an earlier case that denying this to them might be an abuse of discretion) was interpreted as stemming from this recognition.

    The federal standing question is independent, and the California Supreme Court didn’t address it directly. But it’s pretty clear from Karcher that if initiative proponents have the right under California law to represent the state’s interest, then they also have federal standing, given that the state clearly has an interest in a case challenging one of its laws.

  4. deedrdo says

    ari: are the CA requirements for standing different that the requirements for federal standing. if so, could the 9th rule that, under federal statutes, the proponents have no standing in federal court?

  5. Matt N says

    David – As mentioned, standing can’t be conceeded. Also, AFER is representing the interests of the plaintiffs first and foremost, and their specific case is to have the right to marry in California, not to have this right expanded to the 9th circuit or the whole country.

    So, AFER had a legal duty to argue standing for these reasons, but it doesn’t mean they can’t be happy with the current result.

  6. Zlick says

    From today’s ruling, and -with half still to go- a great synopsis of just how I’m reading it:

    “Neither the state constitutional provisions relating to the initiative power,nor the statutory provisions relating to the official proponents of an initiativemeasure, expressly address the question whether, or in what circumstances, theofficial proponents are authorized to appear in court to defend the validity of aninitiative measure the proponents have sponsored. Nonetheless, since the adoptionof the initiative power a century ago, decisions of both this court and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties…”

    So it’s NOT in the Constitution (Article 8, secs 1 & 8 are silent as to court rights) and not even in the arcane Elections statutes, but rather all in case law. That’s fine. But case law is merely court precedent that other courts may legitimately rely on, but it is misleading to refer to it as “California Law.”

    Basically, the court is saying they are ruling that way because they’ve always ruled that way. While legitimate, it’s like saying I ate corn flakes this morning because I *always* eat cornflakes in the morning – though there’s no reason not to eat Rice Krispies every third Tuesday.

    Oh, and they punted on the question of whether the initiative proponents have a particularized interest now that the matter has already been voted upon … claiming they needn’t bother answering that part of the question because they already determined the proponents have the ability to stand for the state on appeals. LAZY foot-dragging, evasive and LAME!

    Sorry for the long rant. I may have something more substantive to add after I finish reading the ruling. Sheesh, 72 pages!

  7. deedrdo says

    ty @matt i am a californian waiting to marry. i have been following this closely, obviously, but sometimes my non-legal mind has trouble grasping all the intricacies.

  8. Al in SoCal says

    Timeline for 9th Circuit opinion – and possible timeline for SC??

    Can we get a best case / worst case scenario on how long this might take to snake itself through the remaining courts? Great analysis – look forward to reading the SC majority opinion on a 5-4 ruling in favor of equal rights hopefully in my lifetime!

  9. Rich says

    Personally, I see this ruling as a defeat. The California Court had an opportunity to rein in the initiative process and didn’t take it. In the long run, this will harm Californians far more than the overturning of Prop 8 on federal grounds will do good.

  10. Al in SoCal says

    @Rich – you cannot be serious! You think even if the SC knocks down DOMA and finds that SS marriage is a Constitutional right that outweighs reigning in the initiative process?????

    Here is how you reign it in – you get a wealthy backer and you put an initiative on the ballot with these words:

    All future initiatives must get yes votes from two thirds of number of REGISTERED voters in the state in order to pass (you can also do 2/3rds for signatures just to get on the ballot)

    Instantly you’ve just wiped out the initiative process in CA.

  11. Al in SoCal says

    @Rich – knocking down DOMA is my FIRST priority. The initiative process in CA can be dealt with by a single initiative. Live by the sword … die by the sword.

  12. Al in SoCal says

    @ODB – so if the SC rules that the Prop 8 is unconstitutional – that does not strike down DOMA?? Just wondering??

  13. Keith says

    As a married Californian, I must disagree with Ari’s final analysis of this issue. By granting standing at the state level, they’ve all but guaranteed standing will be granted at the Federal level. While I do agree that the 9th Circuit is “crossing its t’s and dotting its i’s” to ensure it gives the USSC as clean a case as it possibly can, the reality is that we will lose at the Federal level. While PropH8 revoked the word “marriage” for same-sex couples, it didn’t revoke any constitutional rights or legal protections because California has a rigorous Domestic Partnership system (which as we all know who have one here that it’s basically worthless without the word “marriage” when it comes to employment, legal or social recognition). I highly doubt the USSC will uphold the 9th Circuit’s decision if it goes our way, since we can’t really demonstrate “harm” as a result of the loss of this one word. While I appreciate Ari’s enthusiasm for this case, I strongly believe that a 5-4 majority will uphold the PropH8 law as constitutional. . .I just can’t see Kennedy agreeing with the findings from the lower-court arguments in this matter. The cases to overturn DOMA will be more significant and have greater impact, and we’ll probably have to go back to the ballot box to overturn PropH8 in about 10-20 years when demographics have changed enough to provide a clear majority of voters for the undoing of this proposition.

  14. Keith says


    Don’t change the initiative process to a 2/3 approval vote level until after PropH8 has been overturned, as otherwise it’ll take us even longer to achieve the goal of marriage equality here in California.

  15. Michaelandfred says

    I’m still confused as to WHY the 9th circuit asked for this since it seems it still runs counter to past federal rulings and they still have to rule on standing in this case. If, as Ari suggests, that now the 9th AND the SCOTUS will first deal with standing, what was the point in asking the California Supreme Court? State law is state law. This is why we are now in federal court. Is it to bolster the 9th circuits standing on this issue, although it should still be up to them regardless of what the state holds to be true. Didn’t they do this once before in Arizona (?) and the SCOTUS overturned their ruling stating they had no standing?

    While I’m in favor of the direction this has taken, I’m still confused as to why they asked for this opinion, and said they would abide by it, in the first place. Federal law allows it or does not. California shouldn’t really have a say anymore.

  16. Rrhain says

    I’m confused as to why there is a question of standing. The claim is that the State is required to defend laws against legal challenges. I get that. They should.

    But in this case, they did. It went to court. They lost. By this new ruling’s logic, this forces the State’s hand by requiring them to appeal. That makes no sense. That means that every single challenge to a law must necessarily be argued up to the Supreme Court. And if that’s the case, then why on earth have any of the subsidiary courts? If everything has to be decided by the Supreme Court, eliminate the middlemen and go straight there.

    Are we seriously claiming that those charged with managing our jurisprudence are not allowed to have any discretion? They can’t simply take, “You lost,” as a result? If that’s the case, if all losses must be challenged, if there is no discretion, then why do prosecutors have any discretion of any kind? Why do they get to say that certain cases will not be prosecuted due to a perceived lack of ability to prevail at trial? Why does your case get to be denied? Just because it is “personal”? It can’t simply be because of “importance” because all cases are important.

    This decision requires ridiculous convolutions of logic as to the functioning of our judicial system.

    That said, I very much want a federal decision declaring discrimination against gays to be unconstitutional, but this isn’t the way to do it.

  17. PLAINTOM says

    I am not a lawyer so please excuse this naive question. As I understand this situation, the California State Supreme Court was drawn into defining standing because the original prop 8 proponents did not include language in the referendum which would have automatically given them standing if the State chose not to defend the law. This language is routinely and easily included in referendums. If this simple boilerplate language would serve the interests of any referendum proponents, wasn’t the California Supreme Court simple bailing out inept lawyers?

  18. Dana Chilton says

    I agree Ari. The court wanted it two ways; It bent over backward to ‘jealously guard’ the initiative process by granting them the authority to take the place of the state then said its ruling was ‘extremely narrow’ and didn’t really give them the power of the state. The court has, in essence, created a fourth branch of government. An unelected branch that takes no oath of office and has no constraints on how its funded. The ballot in California is now both legislative and executive; it can be used (by simple majority vote) to ‘limit or broaden’ the civil rights of any group it wants and now has the right to force appeals in court. The court claims its ruling will not allow initiative backers to enforce their initiatives or take the place of the state in all instances that relate to their initiatives but it had to turn a blind eye to reality to reach that conclusion. The court then absurdly claims that the state may not be liable for the cost of these court actions by initiative backers but declined to give any reason why that might be so and failed to give a reason for why ‘the state’ as embodied now by initiative backers is not really ‘the state’. In Federal court, as you mentioned, private citizens cannot take the place of the state irrespective of Justice Kennard stated belief that they can.

  19. Randy says

    What’s interesting is that the CA Supreme Court has changed the meaning of the initiative process. Now, you’re not just voting for a law or amendment, but you’re ALSO voting for the people who will end up defending the law.

    That creates the possibility of competing initiatives to do the same thing, but with different legal teams prepared to defend it. What happens when two teams propose the same or similar initiatives?

    It also creates the possibility of deception, where a team purports to promote an initiative, with the intent of working against it once it is passed (the decision mentioned this in a footnote, but declined to rule on it).

  20. bbbbmer says

    An excellent analysis, but I would go one step further — the Cal Sup’s erred in the matter of standing, primarily because of jurisdictional differentiation on standing and whether a private concern or clerk of a clerk can stand in the shoes of the state when state officials when officials refuse due to the lack of constitutional grounding of the merits… It is only a technicality, and certainly… the case can return to the 9th Circuit for speedy and favorable disposal, but this decision opens the door to any crackpot initiative group to launch a bid that captures the imagination of a sleepbound and hate driven public, and grind fundamental issues like civil rights and equality before the law to a screeching halt while they tie such measures up in court… What this ruling COULD do is to compel the AG to weigh in on constitutional merits of initiatives prior to balloting with authority to put a stop to those who seek to undermine constitutional protections via the initiative process… which could have spared us all a world of hurt caused by Prop 8

  21. David says

    AFER could have conceded this issue. They fought on standing every step of the way and were under no obligation to do so.

    Now, it is true that this would not have ended the inquiry; the 9th Circuit itself would have to assess whether the Prop 8 proponents had standing and it may be that the 9th Cir. would have wound up asking the CA Supreme Court for its advisory opinion anyway. But this notion of Ari’s that this outcome is what AFER really wanted is bullsh*t. You don’t fight vigorously for a year and spend hundreds of thousands of dollars to prevent an outcome that you want.

  22. Gianpiero says

    If the Yes on 8 folks are denied standing at the federal level and Judge Walker’s decision is allowed to stand, why would that not also be “a full victory on the merits”? Did he not decide the case on the evidence presented in his courtroom?

  23. anon says

    Expanding standing in constitutional cases is a good thing because it allows more people to challenge the unfair conditions under which they are forced to live. This could force more states to defend their anti-gay-marriage constitutions. Olson/Boise is not just trying to win in CA after all.