Prop 8 and the Standing Issue

Reports are filtering out from the Supreme Court’s oral arguments today on California’s Proposition 8 that the Justices might boot the case on what are known as standing grounds.  Standing refers to whether there is a real dispute between the parties sufficient to justify the exercise of federal court jurisdiction. Article III of the Constitution requires a “case or controversy” — standing doctrine demands that the parties be truly adversarial; that the plaintiff be a party that has actually suffered an injury in fact; that the defendant’s conduct has caused the harm; and that the harm can be redressed by a court decision in its favor.

The problem here is that the state of California should be defending Proposition 8, but the governor and attorney general have refused. In such a case, under California law, the proponents of an initiative can defend the suit. But under federal constitutional law, this may not be sufficient to meet standing requirements. If a federal statute were to involve this issue, as with DOMA, then Congress can hire counsel to defend the constitutionality of a law. But it seems to me that the proponents of Proposition 8 should be allowed to defend the law in federal court. 

First, who gets to defend the law under the separation of powers on behalf of the people of California is a matter of state constitutional law, not federal law. While the federal courts should be able to determine whether the state government has sufficient standing — as it does in this case — it should be a matter of state constitutional law to decide who may defend the law in court. Under state constitutional law, the state of California could allow a private person to defend the statute (just as when state AGs hired private counsel to pursue tobacco companies).

Second, allowing the proponents of Proposition 8 to defend the law fulfills the very purposes of the initiative. The initiative was a creation of progressives of the late 19th and early 20th centuries because of special interest control of state governors and assemblies. The initiative was designed as an end run around official state government — it exists because of fears that the elected representatives would not represent the interests of the people. It would make little sense, then, to allow only those elected officials to defend the legality of a proposition that was enacted because of the unresponsiveness or opposition of those same officials.

  1. Steve C.

    The people of California have no “standing”? That is surely through the looking glass thinking. Perhaps our distinguished jurists should familiarize themselves with the idea of citizens having the right to a republican form of government.

  2. Illiniguy

    John Yoo:  “Under state constitutional law, the state of California could allow a private person to defend the statute (just as when state AGs hired private counsel to pursue tobacco companies).”

    I’d say this is different. In your example, the state is actually the party defending the statute, the private counsel would merely be the state’s agent for purposes of prosecuting the suit.

    **UPDATE** (I made my first comment before I looked up the actual 9th Circuit opinion)

    The Governor of the State of California is the named defendant in the original case, brought in Federal District Court. By what authority does the state have to decline to defend itself in a case in which it is a named party without risking default judgment against it? Its failure to do so allows the will of the people who passed the initiative.

  3. Adam Koslin

    I could not agree more.  It’s ridiculous that the whole Prop 8 question could be punted on a technicality that violates the spirit of not only Prop 8, but the initiative process itself.  If the court has any guts they’ll just take a stance.  Better a “bad” decision than a spineless weasel.

    As a parenthetical I always thought it was rather ludicrous that California — land of Hollywood and San Francisco, La Raza and Gavin Newsome, UC Berkeley and Grass Valley — would pass such an unambiguously un-Liberal initiative.  Prop 8 was never viewed by the dominant political and intellectual culture of the state as anything but a regressive abomination.  And, though I can’t prove it, I strongly suspect that it hurt advocates of traditional marriage more than it helped.  The fact that the state government is unwilling to defend it, as is majority public opinion within the state, is, unfairly or not, giving the public impression that no-one at all is willing to back the anti-SSM side of the debate. 

  4. Eric Hines

    The initiative was designed as an end run around official state government….

    This should be a redundancy.  The citizens of CA are sovereign in their state; the government is just their hireling.

    On the matter of Prop 8, this was the the citizens of CA speaking directly on a matter.  On what basis are the citizens not allowed to defend their voice in court when their hireling shirks its duty and refuses to do so itself?

    Eric Hines

  5. Joseph Stanko
    Taliesin: 

    As a parenthetical I always thought it was rather ludicrous that California — land of Hollywood and San Francisco, La Raza and Gavin Newsome, UC Berkeley and Grass Valley — would pass such an unambiguously un-Liberal initiative.

    Actually, California voters have a long history of voting for conservative ballot initiatives that infuriated the liberal elite:

    • Prop 13 capped property taxes and ignited the “tax revolt” of the late 70′s

    • Prop 187 restricted illegal immigrants from using public services
    • Prop 209 banned affirmative action in the public sector

    Also Chief Justice Rose Bird lost her re-election bid, mainly because she opposed the death penalty.

    And remember, California is also the land of Richard Nixon, Ronald Reagan, Rob Long, Peter Robinson, and of course John Yoo!

  6. Mendel
    Joseph Stanko

    Taliesin: 

    And remember, California is also the land of Richard Nixon, Ronald Reagan, Rob Long, Peter Robinson, and of course John Yoo! 

    And Joseph Stanko!

  7. Joseph Stanko
    Mendel

    Joseph Stanko

    Taliesin: 

    And remember, California is also the land of Richard Nixon, Ronald Reagan, Rob Long, Peter Robinson, and of course John Yoo! 

    And Joseph Stanko! · 0 minutes ago

    (blushes) True, but I hardly belong in such illustrious company!

  8. Throat Wobbler Mangrove

    I keep seeing reports that if the Supreme Court boots the case on standing grounds, this will vacate the Ninth Circuit opinion, but leave the federal district court decision intact.  Any thoughts on why this would be?  Why wouldn’t the initial decision be tossed as well?

  9. Adam Koslin

    Reagan was governor 40 years ago.  Nixon lost the governorship.   John Yoo gets headlines for being picketed (sorry, Professor…for what it’s worth I’d love to take a class or 50 from you).  Prop 13 was the creation of the (at the time) cutting edge political technique of the mass mailer, and Prop. 187 is the reason the California GOP is dead.  Prop 209 passed because, whether we like to admit it or not, California has struggled with some rather nasty racist impulses.

    The culture and ethos and demography of the state is deeply, deeply blue, with a couple dirty secrets.

  10. Eric Hines
    Joseph Stanko: 

    • Prop 209 banned affirmative action in the public sector

    and

    Taliesin: Prop 209 passed because, whether we like to admit it or not, California has struggled with some rather nasty racist impulses.

    How, exactly, is banning a racist practice in the public sector itself racist?

    Eric Hines

  11. kylez

    Prop 209 passed because, whether we like to admit it or not, California has struggled with some rather nasty racist impulses.

    excuse me??

  12. Eric Hines

    On the general question of gay marriage, it seems rather pointless anyway. What practical effect does it have on issues like inheritance or shared property which could not be dealt with by private contracts ?

    Private contracts are much more easily overturned than are wills.  Further, absent a will, familial survivors will have a field day tossing those contracts.  Also, dying intestate typically leaves the deceased’s estate to be probated by the estate–which typically means a state-specified division among the surviving spouse and children.  Community property laws add their own fillips to this.

    Similar problems exist  with hospitalization, serious/terminal illness or injury and a living will doesn’t exist.  By default, spouses can make these decisions for an incapacitated loved one.

    Gays, absent marriage, are subject to all of these shortfalls, unless civil union laws accommodate these circumstances.

    It’s a fair question that cries out for resolution one way or the other.

    Eric Hines

  13. Katie O

    John Yoo: “Under state constitutional law, the state of California could allow a private person to defend the statute (just as when state AGs hired private counsel to pursue tobacco companies).”How is it decided if a private person will be allowed to defend the statute? Is it the governor’s decision? The legislature? The state AG? Can a private person volunteer or pettittion for this allowance?

  14. Adam Koslin

    Watts Riots.  The Rodney King fiasco.  Redlining.   Dog-whistling over gangs.  And that’s just LA.  Oakland has its own sordid history.  Californians weren’t kind to the “Okies” during the Depression, got hysterical over the Japanese during the second War, and has had a very confused relationship with Hispanics for over 40 years. Heck, this state invented the “Bradley Effect.”

    Look, the state is a paradise of racial harmony compared to some places.  But there have been problems that we have struggled with.  They’re getting much, much better.  But that history is there.

  15. SParker
    Taliesin: 

    The culture and ethos and demography of the state is deeply, deeply blue, with a couple dirty secrets. · 12 hours ago

    “deeply, deeply blue” is a nice description of the ocean beyond Catalina, but not real useful in describing California politics.  The average “deeply, deeply blue” AME church-goer is capable of both reading a ballot and splitting a ticket.  Shoot, not only do we reflect the contradictions in the Democratic coalition, we also like to divide geographically.  Every so often someone proposes a (possibly) more workable division of the state.  Logland, Fogland, and Smogland was my personal favorite, but Coastal Donut seems to be the most recent (and as usual Bakersfield is the butt of the joke).

  16. Tom Roberts

    It seems wrong that an amendment which did nothing more than maintain the traditional definition of marriage should be overturned on a technicality. Prop 8 received about 52 % of the vote, and I think the bias should be in favour of keeping the status quo, rather than creating a new “right”, unless a substantial majority vote in favour of creating a new institution of “gay marriage”.

    On the general question of gay marriage, it seems rather pointless anyway. What practical effect does it have on issues like inheritance or shared property which could not be dealt with by private contracts ? I don’t see why centuries of tradition should be overturned to suit a minority ( 2 or 3 % ? ) who are not inconvenienced in any significant way by the absence of a right to SSM.

    For instance, the percentage of immigrants from countries which drive on the left is probably roughly equivalent to the percentage of gay people. As much as I would prefer to drive on the correct side of the road ( as an ex-pat Brit ), I wouldn’t expect the law to be changed to suit me and a few million other Brits, Aussies and Indians !

  17. Perry Palmer

    I’ve read nothing about gay divorce. That may be the, “be careful what you wish for” moment.

  18. kylez
    Taliesin: Watts Riots.  The Rodney King fiasco.  Redlining.   Dog-whistling over gangs.  And that’s just LA.  Oakland has its own sordid history.  Californians weren’t kind to the “Okies” during the Depression, got hysterical over the Japanese during the second War, and has had a very confused relationship with Hispanics for over 40 years. Heck, this state invented the “Bradley Effect.”

    Look, the state is a paradise of racial harmony compared to some places.  But there have been problems that we have struggled with.  They’re getting much, much better.  But that history is there. · 47 minutes ago

    what does that have to do with not giving special preference to “minorities” in hiring, education etc?

  19. DocJay

    I was effectively told that my great MCATs, pretty good GPA from UCSD, volunteer work in hospital, and job at NOSC as a chemist meant nothing in terms of getting in to med school there. My gender and race were the determining factors. The door swings both ways and it’s high time it stopped swining altogether. I’m not sure how they do it now but really, it’s Chinatown Jake, so fuggetaboutit.

  20. DocJay

    As far as this issue with the scotus goes. Cali was a bad place for conservatives to push the issue from a PR standpoint.

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