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.