The Prop 8 Punt

The world needs my input on contemporary issues, so…
Second, Prop 8.
This one was the anti-climax many people predicted. The Court ruled that the defenders of Prop 8 did not have standing to defend it. Since the California courts had decided they did, I think it would have been reasonable for SCOTUS to have asserted their standing for purpose of its having jurisdiction, but denying their standing is also entirely reasonable.

As a reminder: the California Executive officials declined to defend the law, so the U.S. District Court allowed the folks who initiated Prop 8 to defend it. When the District Court (Judge Walker) ruled against Prop 8, they appealed the decision to the 9th Circuit. The syllabus of the ruling states what happened next with admirable clarity:

The Ninth Circuit certified a question to the California Supreme Court: whether official proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of the initiative when public officials refuse to do so. After the California Supreme Court answered in the affirmative, the Ninth Circuit concluded that petitioners had standing under federal law to defend Proposition 8’s constitutionality.

Of course the 9th Circuit also struck down Prop 8, and the petitioners appealed to the Supreme Court, which now rules that in fact they did not have standing to appeal the case to the 9th Circuit. It might seem that by extension they did not even have standing to defend the case in the District Court, but apparently not so.

The parties do not contest that respondents had standing to initiate this case against the California officials responsible for enforcing Proposition 8. But once the District Court issued its order, respondents no longer had any injury to redress… [T]hey had not been ordered to do or refrain from doing anything. Their only interest was to vindicate the constitutional validity of a generally applicable California law. As this Court has repeatedly held, such a “generalized grievance”—-no matter how sincere—-is insufficient to confer standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555–574. Petitioners claim that the California Constitution and election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process,” Reply Brief 5, but that is only true during the process of enacting the law. Once Proposition 8 was approved, it became a duly enacted constitutional amendment. Petitioners have no role—special or otherwise—in its enforcement. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every California citizen. No matter how deeply committed petitioners may be to upholding Proposition 8, that is not a particularized interest sufficient to create a case or controversy under Article III.

This is pretty persuasive, but the dissent, which curiously enough includes both Kennedy and Alito, who would surely have lined up on opposite sides if there had been a substantive ruling on the case, also makes a pretty persuasive claim that this case is different because it involves the initiative process, not standard state-legislature made laws.

[W]hat the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around… In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so.

I think the crucial point is this. The Court doesn’t let just any citizen get involved with a constitutional challenge absent a showing of real injury because it could lead to a deluge of whackadoodles filing frivolous lawsuits challenging just about every statute on some imagined constitutional basis or other or demanding that state or federal officials do a bizarre variety of actions on some fantasy that they’re constitutionally obliged to do so. That’s the reason for the restriction. But that problem doesn’t really come into play when you’re talking about a very specific group–the original proponents of a ballot measure–whose state has authorized them to have standing. In those limited circumstances the fear of judicial chaos by deluge of whackadoodleness does not come into play. But does that mean therefore that the state authorization of standing overrides the federal judicial rule? Eh…..both sides have a pretty persuasive position, so flip a coin.

Substantively what this means is that the District Court’s ruling striking down Prop 8 stands, along with its ruling that equal protection requires recognition of same-sex marriage. But only in that District’s jurisdiction, Northern California. But, ok, in practice that’s going to mean all of California, because there’s no way in hell a state constitutional amendment struck down in one part of the state is going to hold good in another part of the state.

And at any rate, California Governor Jerry Brown has ordered the state Department of Public Health to advise all counties that they must start issuing marriage licenses to same-sex couples as soon as the 9th Circuit confirms that their stay on the effect of their decision against Prop 8 is lifted (which I would assume they would do quickly). So there will be more same-sex marriages in California soon.

But the Federal District Court’s ruling has no authority outside California. This means the equal protection clause of the 14th Amendment to the U.S. Constitution means one thing in California, but possibly–depending on future Federal District Court rulings elsewhere–something different in other states. That state of affairs cannot and will not last–the Supreme Court doesn’t long tolerate a non-uniform application of the Constitution across the country it constitutes. But for now the battle will again proceed on a state-by-state basis.

But keep in mind, gay rights has not, as far as I can remember, had a significant adverse ruling in the federal courts since Bowers v. Hardwick in 1986, a ruling that was explicitly overturned in Lawrence v. Texas. Even though the Court didn’t take up the substantive issue yet, I think it must be hard for opponents of same-sex marriage to work up any sincere optimism about the future.

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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20 Responses to The Prop 8 Punt

  1. dand says:

    But keep in mind, gay rights has not, as far as I can remember, had a significant adverse ruling in the federal courts since Bowers v. Hardwick in 1986

    there was Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, although i don’t disagree with the result in that case

  2. Pingback: LGBT News Prop 8 Overturned - Supreme Court Validates District Court Ruling - Page 6 - Empty Closets - A safe online community for gay, lesbian, bisexual, transgender people coming out

  3. James Hanley says:

    Good call, dand. I’m still undecided whether the Boston St. Patrick’s Day Parade really isn’t a public forum, but I’m inclined to error on the side of privateness, so I’m not sure I disagree either. At any rate, it didn’t uphold a public policy against gay rights.

  4. dand says:

    The issue in the case was the exclusion of gay groups not gay people. I think parade organizers should be able to exclude groups whose message they disagree with; what if an anti-immigrant group wanted to march in a Cinco de Mayo parade?

  5. James Hanley says:

    Agreed. The only real question was whether an event as big and freely open to the public can really be called a private event, just because it’s organized by a private organization, or whether it’s properly defined as a public forum. I still don’t know what I think about that. But part of me thinks the gay group should just have driven down the street immediately following the last official entry in the parade.

  6. Matty says:

    I’d assume for a big parade the road would be closed to regular traffic so driving down straight after wouldn’t be an option.

  7. Matty says:

    What would have happened if no one who wanted to had standing to defend prop 8 in the district court? The only two outcomes that come to mind are summary judgement for the plaintiffs, or the case being dismissed. Either would seem to give the state government the ability to force a certain outcome just by refusing to show, which amounts to a veto on the court being able to decide. I must be missing something.

  8. pierrecorneille says:


    I read an article in the Atlantic recently by Andrew Cohen that expresses similar concerns:

    (In case you, like me, can’t stand Cohen’s writing, just scroll down to the last paragraph, where he makes the point.)

  9. Ryan Noonan says:

    The truly bizarre thing about denying standing here is that it eviscerates the initiative process. One of the core reasons why ballot initiatives/direct democracy exist is to bypass elected officials who refuse to do the work of the people. If the people use the initiative process to get around the elected officials, and those elected officials have no desire to defend a law they didn’t want passed in the first place, then the Supreme Court’s decision holds that the people have absolutely no recourse to see the law they passed defended.

    I tend to be opposed to the initiative process in general, but there’s no doubt in my mind that it’s legitimate (legally speaking) for the people of a state to use it when it’s available to them. The Court’s decision here basically guts it.

  10. James Hanley says:

    I wouldn’t go so far as to say the decision “guts” it, but I think there’s a lot of strength to your argument.

  11. Matty says:

    So there will be more same-sex marriages in California soon

    That was very soon

  12. James Hanley says:

    Sooner than I expected. And a bit puzzling, since California has a brief waiting period between receipt of a marriage license and when you can actually get married. At least they did when I got married. Not that I don’t think these couples have already had to wait far too long.

  13. Matty says:

    It seems the attorney general officiated, I’m guessing if anyone could waive the waiting period it would be her.

  14. Matty says:

    Hang on

    It seems California doesn’t have a waiting period at least at present, the site says “same sex marriages:yes” on the California page so it’s either up to date or very specifically dated.

  15. James Hanley says:

    Well, either I remember wrong or they’ve changed the law in the succeeding 22 years. Neither would be particularly surprising.

  16. Troublesome Frog says:

    I got married in CA not quite 8 years ago and I don’t remember a waiting period. Less of a burden than the paperwork for installing a new electrical outlet in my house.

  17. James Hanley says:

    Well, of course. It’s not like a bad wife can cause a house fire.

  18. lumbercartel says:

    It’s not like a bad wife can cause a house fire.

    I think this is the right place to refer to Bugs Bunny.

  19. Dr X says:

    It’s not like a bad wife can cause a house fire.
    There are a couple of quips involving the words “really hot” that I could offer right now, but I wouldn’t presume to drag this esteemed academic diary through the gutter of my residual adolescent mind.

  20. J@m3z Aitch says:

    Are you sure you understand this blog, Dr.?

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