Regardless of readers’ specific views on Prop. 8, today the Court decided an important question about standing — and it got it wrong. Hollingsworth v. Perry will have serious repercussions that extend far beyond the same-sex marriage debate. Today’s decision could spell disaster for any group that successfully sponsors an initiative and tries to defend its constitutionality in federal court. This matters not just to California, but the 26 other states that also use initiative processes.
First, here’s the legal background: to bring a case in federal court a party must establish standing — that he has suffered some harm that a court can cure. Here’s what happened leading up to the Court’s decision today. California state voters passed a ballot initiative (Prop. 8) to amend the California Constitution to define marriage as a union between a man and a woman. Same-sex couples who wished to marry filed suit in federal court, naming as defendants state officials responsible for enforcing the state’s marriage laws. But the officials refused to defend the law. After the district court allowed the initiative’s official proponents to intervene in the case and defend it. When the district court declared Prop. 8 unconstitutional, its proponents appealed to the Ninth Circuit. That court asked the California Supreme Court whether the proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of that initiative if the public officials refused. The California Supreme Court held that proponents could defend such measures in court. The Ninth Circuit accepted that holding.
Today, in a 5-4 decision, the Supreme Court said the proponents did not have standing to appeal. Chief Justice Roberts ruled for the Court that Prop. 8′s proponents don’t have standing because they merely have a general grievance and aren’t affected in a “personal and individual way.” He admits that the proponents did have a special role during the initiative process – they were responsible for collecting signatures and filing the measure with election officials – but Roberts writes that role ended once voters approved the proposition. Thus, he asserts, they have no personal stake in defending Prop. 8′s enforcement “that is distinguishable from the general interest of every citizen in California.” Further, the majority opinion rejects the proponents’ agreement that they are authorized by the California Supreme Court to act as “agents” of the people of California for purposes of defending the measure.
Justices Thomas, Alito, and Sotomayor joined in Justice Kennedy’s persuasive dissent, in which he correctly asserts that the Prop. 8 proponents should have standing. He points out that the majority’s opinion does not take into account “the fundamental principles or the practical dynamics of the initiative system in California, which uses [that] mechanism to control and to bypass public officials — the same officials who would not defend the initiative.” Kennedy rightly explains that the initiative system’s primary purpose is to give people “the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.” The dissent asserts California should decide what role proponents play in enforcing initiatives, not the Supreme Court. Kennedy also points out the irony in the majority’s approach. Though an important part of justiciability is to “ensure vigorous advocacy,” he states that the majority departs from that idea, “insist[ing] upon litigation conducted by state officials whose preference is to lose the case.” This excerpt from the dissent sums it up: “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. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century … 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 any when the State’s usual legal advocates decline to do so.”
PLF filed a brief in support of neither party in the Proposition 8 case. PLF’s brief argued two main points: (1) that sponsors’ standing to defend their ballot measures is grounded in the initiative power’s purpose, structure, and process; (2) sponsors’ standing ensures that the people of California and their rights, interests, and enactments will not be deprived of a defense if challenged in court. The brief explains that the purpose of the initiative process — to allow the people to exercise their sovereignty and bypass elected officials — bars elected officials from interfering by act or omission. The structure of the initiative process — which denies elected officials any role in approving or disapproving ballot measures — bars either direct or indirect vetoes of initiatives. The process of enacting initiatives makes sponsors the logical parties to defend their initiatives when elected officials refuse to do so. PLF attorneys are frequently called upon to enforce and defend ballot measures like California’s Prop. 209 (which prohibits the state from race-based discrimination in areas like public education and public employment).
Though Chief Justice Roberts claims he does not want to “engage in policymaking,” his decision supports a standing policy that gives state officials the ability to shirk their duties and it harms all state-authorized representatives who want to defend the constitutionality of initiative-enacted propositions. So whether you’re celebrating today’s Prop. 8 decision or lamenting it, it will be hard for supporters of states’ initiative processes to take the Court’s view on standing, sitting down.