A Mess of Pottage

Let me get two points out of the way off the bat:

• I think that Proposition 8 should be invalidated.
• I am not confident that there are five votes on the U.S. Supreme Court to strike down Proposition 8 as unconstitutional.

Because of both of these points, you would think that I would be rooting for the argument in Perry v. Schwarzenegger that the proponents of Proposition 8 have no standing to appeal the decision. After all, deciding that the proponents have no standing to appeal kills Prop 8 without getting into the sticky Constitutional questions. Judge Walker’s ruling would not be binding on future cases, but it would give an extra 12% of Americans the right to marry a person of their choosing, and it would allow the issue to remain undecided until we have a less hostile Supreme Court on the bench. While all of this is true, I believe that the proponents of Proposition 8 should be allowed to appeal Judge Walker’s decision in Perry.

On Tuesday, the Ninth Circuit asked the California Supreme Court whether

the official proponents of an initiative measure possess . . . the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.¹

This comes as no big surprise, as the court strongly hinted that they would do that in oral argument last month. The doctrine of standing, is based on the following language in Article III, of the Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .” The Supreme Court has decided that the term cases in the previous sentence restricts federal courts to deciding only those matters brought by a party who has an actual and particularized injury that could be redressed by the court. Therefore, not just anyone can sue to challenge the constitutionality of a law that they don’t like; they have to be directly affected by the law before they can bring an action. Likewise, only a party that was directly affected by the judgment can appeal that judgment.

By this standard, I think it is obvious that the proponents just don’t have an interest in enforcement of Proposition 8 that is any different than that of any random person—stopping enforcement of Proposition 8 will not cause the proponents any particular injury or impose any obligations upon them. If the “injury-in-fact” test were the proponents’ only grounds supporting standing, I would have no problem with Perry being decided on those grounds.

However, the proponents have a better argument. It is uncontested that the government has a particularized interest in defending the constitutionality of its laws. Under traditional separation of powers doctrine, it is the responsibility of the executive branch to defend the laws, and consequently, it has standing. But what happens when the executive disagrees with the law it is being asked to defend? Allowing the executive to simply refuse to defend a law that was duly passed by the legislative branch raises serious concerns with separation of powers—the executive would be able to veto legislation by inaction, bypassing the process outlined in the Constitution. In order to counteract this problem, most courts have allowed the legislature to represent the state’s interest in defending the constitutionality of laws when the executive refused to do so through a doctrine called legislative standing.

But what happens when the legislature did not pass the law in question? Twenty-four states currently allow laws to be passed by means of citizens’ initiatives. This process avoids the legislature completely, allowing the people of the state to approve the measure by direct vote. In this situation, no branch of government would have a personal stake in defending the law. While the people of the state voted for the initiative, “the people” is not an entity that can sue or be sued, and individual persons cannot claim to represent the people of the state. Without some other entity to defend the law, the constitutional order is subverted.

The adversarial system only works if there are passionate and strong advocates on both sides of the issue. To ensure the development of good constitutional doctrine, competing points of view must be presented so that a true weighing can take place. While we might be tempted to ignore that principle to gain a favorable outcome in a particular case, such a position would only lead to more problems down the road. Every law should be defended by someone who really believes in it—otherwise it perverts constitutional precedents and makes a mockery of the legislative process. Gays, Lesbians and other minority groups should be especially wary of establishing a precedent that could easily be turned against us.

In the end, I think that the proponents should be given authority to represent the state’s interest if no one else will do it. As much as I would like to see Prop 8 struck down, win I don’t want that victory to have the consequence of slamming the courtroom door shut in the faces of future litigants. Also, remember that if Judge Walker’s ruling is upheld because of lack of standing, no precedent will be set, and there will be no effects beyond California. The ruling would not even prohibit a similar initiative from being passed in the future. While I think that there’s a really good chance that Prop 8 will be struck down on the merits, I would rather lose this case than to win at the cost of the long-term health of our judicial system.

1. The Ninth Circuit also asked whether California law gave the proponents a particularized interest in the initiative’s validity, but for reasons tangential to this post, I think this is so unlikely as to not be worth addressing.