The high-profile battle over California's Proposition 8 has been touted as the case that could force the Supreme Court to face the issue of same-sex marriage. But now that Judge Vaughn Walker had decided that Prop 8, which banned same-sex marriage in California, is unconstitutional, the possibility is real that the case might never make it on appeal all the way to the Supreme Court.
That's because the advocates of Prop 8, who are launching the appeal, may not have the necessary "standing" to carry it forward. The case is titled Perry v. Schwarzenegger, with Gov. Arnold Schwarzenegger and other officials in the position of defending the ballot initiative. But those officials, who are sympathetic toward gay marriage to varying degrees, are not inclined to appeal Walker's ruling.
Under Supreme Court precedent, it's unclear that proponents of legislation would have standing to defend it if state officials are not themselves defending it, because they can't show that they are suffering the necessary injury. In Arizonans for Official English v. Arizona, a 1997 case, the Court expressed "grave doubts" about the ability of such groups to challenge rulings that strike down ballot initiatives.
"There is a very serious standing issue," said George Washington University Law School associate dean Alan Morrison, a longtime expert on standing and civil procedure. The Arizona precedent , he said, "came right up to the edge" of saying there was no standing for groups like those that favor Proposition 8. Morrison also noted that since that ruling, new members like Chief Justice John Roberts Jr. and Samuel Alito Jr. have joined the Court and are "no friends of expanding standing." Setting high standards for standing has been one of several gatekeeping procedural doctrines conservative justices have used to weed out what they view as excessive or frivolous litigation from the courts.
Morrison adds that Walker's findings in his decision -- including the finding that same-sex marriage causes no harm to those in traditional heterosexual marriages -- weaken the case for standing for the Prop 8 proponents. "There is no evidence that any persons are going to be harmed," Morrison said.
Proponents of Prop 8 say they can overcome the standing hurdle because at an earlier stage of the litigation, they were allowed the status of intervernors, and because their role in creating and launching Prop 8 gives them enough "particularized interest" to legitimately appeal Walker's decision.
Cornell Law School professor Michael Dorf, while sympathizing with Walker's decision, wrote recently on his blog that a good argument can be made for standing when state officials are reluctant to defend a successful ballot initiative. "The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will," said Dorf, a former law clerk to Justice Anthony Kennedy. "Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process. Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative's constitutionality."
For another view of the standing issue, check out this post at SCOTUSblog.
However, didn't Judge Walker deny Imperial County California's petition to intervene and the County at the direction of its supervisors -- unlike the Governor and the AG -- apparently desire to enforce Prop 8 and perhaps arguing that the county has some latitude in how sweepingly Prop 8's invalidity should be interpreted and administered at the county level? If true, Judge Walker may have mistakenly excluded a local government which believes, unlike the Governor and the AG, that were Prop 8 found to be valid, as public officials they would have a duty of enforcement, whether they personally approved of the policy supported by the County supervisor or opposed it. Separately, some academics argue that with Proposition 8 invalid, the public policy of the national and by incorporation state governments is now nondiscrimination against gays even if the claim of discrimination arises in a religious context. The Court's decision in Bob Jones suggests a basis in racial precedent to argue the oublic policy point by analogy; and thus, religious bodies persisting in excluding gays and lesbians from church privileges would be argued to be ineligible for public tax exemptions or other public benefits such as member charitable deduction. The potential or imminent loss of these valuable public economic subsidies might then be persuasively argued to be sufficient for Article III standing. The absence of injury in fact not in fact absent under either scenario, why would Judge Walker indulge a rigid conception of standing, especially when the standing determination by the Supremes has likely passed from the hands of Chief Justice Ronerts or Justices Alito, Thomas, or Scalia. More relevant is not what these four do but what becomes of standing in light of the ascension of Associate Justices Kagan and Sotomayor, especially when the the pro-standing voicss of Justices Breyer and Ginsburg suggest an inclusive quartet, and possibly a Kennedy concurrence to make five votes in favor of standing when the author of the plurality in Lawrence v. Texas is accounted for.
Professor Kmiec, submits this observation solely to put these questions to a diverse, inter-religious cross section for discussion These commentss are for academic discussion only and in no way reflect or specify the view of the President, Secretary Clinton, or for that matter, myself.
Posted by: Douglas Kmiec | August 14, 2010 at 04:38 AM