What To Watch For: ‘Standing’ in the Supreme Court Prop 8 Case, Hollingsworth v. Perry

ProtectmarriageIf you remember, when Hollingsworth got started, the law was initially defended by the state government. But, after Judge Vaughn Walker declared that bans on the freedom to marry violate equal protection and due process, neither then-Governor Schwarzenegger nor his successor, Governor Jerry Brown, had any desire to challenge that ruling. After the court thwarted a conservative California county's attempt to become party of the case after the fact, the only party left to defend Prop 8 was the group that wrote it: ProtectMarriage and ProtectMarriage.com. However, ProtectMarriage is just a small group of ordinary Californians who have no direct skin in the game other than the fact that they wrote and advocated for the law. The State of California is the party with a "direct injury": if Prop 8 dies, it has to change it's behavior and start issuing marriage licenses to gay couples. So, if California is the one "injured," how could a small group of people with no connection to the California government have standing?

We spent most of 2011 waiting for the California Supreme Court, the highest court in the state and, therefore, the final arbiter on state law, to answer this conundrum for the Ninth Circuit: Does state law give initiative proponents standing to defend their proposal when the State declines to do so?

The California Supreme Court said yes, arguing that the power to "propose and enact" has no meaning without the power to "defend." And, because California has a liberal and expansive initiative proposal process, any other ruling would do violence to long-standing public policy of the state.

The Ninth Circuit pretty much accepted the California Supreme Court's ruling
, arguing that ProtectMarriage did not, itself, have to show any direct injury: State law gave ProtectMarriage the power to step into the shoes of the State, piggy-backing on California's standing. All that was needed, then, for federal standing to appeal was California's standing — which was undisputed — and state law that allowed initiative proponents to assume the state's role when the state government declined to defend its own laws.

SupremesThis will be the first question the justices will address on Tuesday. And, they will start from the beginning. They don't have to agree with the Ninth Circuit. Nor do they have to even agree that the Ninth Circuit went about answering the question the correct way. The Court could say, along the lines of some discussion in a recent Supreme Court case called Arizonans for Official English v. Arizona, that regardless of what state law says, initiative proponents still have to show their own "direct injury." Notably, an amicus brief submitted by two former Republican Attorneys-General, John Ashcroft and Edwin Meese, argues that the Court could even ask the California Supreme Court about whether ProtectMarriage experienced "direct injury."

That makes no sense. "Direct injury" is a question of federal law, and state courts have no role in answering purely federal questions. What's more, Arizonans suggests (though never explicitly decided) that the Ninth Circuit was wrong that initiative proponents need not demonstrate their own "direct injury." And, we cannot forget the political factors at play. Many experts think that the Court may use the jurisdictional question of standing to punt or narrow the scope of Hollingsworth. The Court may not be ready to decide the marriage question for the entire nation, or even for a small handful of states. Finding that ProtectMarriage lacked standing to appeal would erase the Ninth Circuit's opinion and leave Judge Walker's decision in tact and, thus, applicable only to the State of California. This would still be a victory for the freedom to marry because thousands of gay men and women in California could finally marry, ending their post-2008 nightmare.

But, the Court could just as easily agree with the Ninth Circuit or find federal standing on its own theory. If it does, the next step would be to address the merits of the case, which raises questions of the appropriate level of scrutiny, the justifications for Prop 8, and the reach of the Court's analysis. Stay tuned for a summary of these questions.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.


  1. Jim in MN says

    Thanks, Ari, This is pretty much exactly what I thought… The Supreme Court could, if it wants to avoid dealing with deciding applicable scrutiny, just deny standing, Prop 8 would fall. But I am equally curious about the “standing” issue involving the DOMA case and I’d love to hear your thoughts regarding that, too! :)

  2. Zlick says

    I don’t get it, Ari. From all I’ve read and studied, it seems clear that neither the Prop 8 proponents nor BLAG have proper Article III standing. So when SCOTUS decides to deal with the merits, will they be setting up a bad precedent – or can they just give this the Gore v. Bush treatment and say Article III standing is uniquely waived for these two cases?

  3. Lymis says

    Similarly, could they rule that nobody has standing, but by the way, heightened scrutiny in fact applies, everyone have a nice summer, and throw everything back to lower courts all over the country?

  4. says

    @zlick: what you may be reading are arguments about the law of federal standing. whatever those outlets, no one can argue that the standing question does not have reasonable arguments on both sides. i know which side i agree with, but i would never say it seems clear. art iii standing cannot be waived in a case like this because it isnt unique.

  5. says

    I think a denial of standing would be a boost for the LGBT side, even if that means the Supremes won’t mandate marriage equality beyond California. It could ratify the message that the anti-gay crowd is not harmed by our marriages. That takes out one of their big arguments.

  6. Bill S. says

    BLAG on its own does not have standing, but the Justice Department is filing the appeal (on behalf of the United States of America). The Constitution says that the United States of America always has standing, but the question is if there is still a “case or controversy” given that the Justice Department agrees with the 2nd Circuit ruling. The argument in favor of Art. III being met is that the United States continues to hold Ms. Windsor’s tax refund and therefore there is still an unresolved controversy between the parties. I believe that the Supreme Court will rule that Article III is met and will decide on the merits (favorably for us).

    Hollingsworth and others clearly do not have standing and I have a feeling the Supreme Court took this case only to clarify the issue of ballot initiative proponent standing left unresolved by Arizonans for Official English v. Arizona. They will rule 9–0 that proponents do not have standing, and that will be the end of that, at least at the federal level.

    The Governor will cease enforcement of Prop 8 and instruct all county clerks to issue same-sex marriage licenses. But because the California Supreme Court in its answer to the certified question said that proponents have standing (in state courts, which is all they are authorized to decide), the Proponents will probably head to the state courts to argue that the District Court decision applies only to the two named couples in the suit. So this could go on for another couple years.

  7. Jeff says

    “But because the California Supreme Court in its answer to the certified question said that proponents have standing (in state courts, which is all they are authorized to decide), the Proponents will probably head to the state courts to argue that the District Court decision applies only to the two named couples in the suit. So this could go on for another couple years.”

    WOW! The Prop 8 fight might go on and on for even more years.


  8. STEVEN says


    If the Supreme Court decides Proponents have no standing or ruled Prop 8 is unconstitutional. They can’t go back to the State courts and whine. The decision will be FINAL. Prop 8 will be history if the Justices make a correct historic decision. While I m not saying what the the court will decide I’m very cautious hopeful.

  9. Michaelandfred says

    @Ari, another question. Now we have this 9 state solution in the mix, intended to give the SCOTUS an “out” of moving forward but not too far ahead of public opinion. I’ve read recently that comparisons to “Loving” and marriage equality are not quite accurate because we have 30+ states with constitutional amendments whereas when they ruled on “Loving” only 16 states had yet to legalize interracial marriage, even though the public (70+%) was against.

    My question is, do you know what the law was considering Full Faith and Credit before the “Loving” ruling came down? Was it anything like the mess we find ourselves in today or did those states honor those marriages while still not legal in their own states?

    We have enough insanity with the mess we are in right now without the SCOTUS dropping 9 or more new states into the mix where our marriages become null and void as soon as we cross a state line. 9 more states would put the country into the halves and halves not and wold create total chaos.

  10. Bill S. says

    Normally, District Court decisions are binding only on the specific named parties to the case.

    However, if the winning party can only be relieved of their grievance by striking down the law entirely, then a District Court decision can be applied more broadly. There is a sentence in the District Court decision to this effect: Prop 8 officially declares same-sex couples to be lesser-thans, so even once the parties get their marriage licenses they won’t be fully equal until Prop 8 is struck down for good.

    The proponents can challenge this though, arguing that the parties’ grievance is relieved once they get their marriage license. Don’t think they won’t try.

  11. Rich says


    If SCOTUS decides that the proponents of Prop 8 did not have standing to appeal Judge Walker’s decision are they still free to affirm that Judge Walker’s interpretation of the US Constitution is correct and should be considered the law of the land?

  12. Tim says


    If the standing issue leaves Judge Walker’s decision in tact and applicable only for married California couples and any of those married couples move to other states, would the Full Faith & Credit clause of the US Constitution require those states to recognize their marriages?

    Thank you.

  13. says

    @michaelandfred: thank you for your question. Unfortunately, the FFC clause require out of state judgments to be recognized in another state. The conventional view, though some disagree and want to change this, is that marriage licenses are not final judgments. No judge, no adversarial proceeding, not what the FFC was for. Oddly, an out of state gay divorce would fall under the clause bc it has all those things and is a final court judgment. So, a state need not recognize a gay marriage but does have to recognize a gay divorce. But, of course, if its a non equality state, it didnt think the gay couple was ever married to begin with, so the gay divorce would be moot. Make sorta sense?

    Email by Ari, Typos by iPhone.

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