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Topics In the News
Standing in the Proposition 8 Case
Posted by: Claude J. Summers on 03/01/13
Last updated on: 03/02/13
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When the Supreme Court on December 7, 2012 somewhat surprisingly announced that it would review the Proposition 8 case, now known as Hollingsworth v. Perry, it indicated that among the issues it would consider in the case is the question of standing, i.e., whether the proponents of Proposition 8 had the right to defend the Proposition after the Governor and Attorney General of California declined to do so. The question of standing is an issue that has haunted the case from the very beginning of the appellate process and it may preclude a broad-ranging decision from the Court.

In 2010, after Judge Vaughn Walker issued his historic decision declaring Proposition 8 unconstitutional, the Ninth Circuit Court of Appeals expedited review of the case and ordered that briefs address the question of whether the proponents of Proposition 8 had standing to appeal.

On December 6, 2010, a three-judge panel of the Ninth Circuit heard oral arguments in the case. On January 4, 2011, the panel issued a unanimous ruling to certify to the California Supreme Court the question of whether Proposition 8's proponents had standing to pursue the case. The question posed to the California Suprme Court was whether California law recognizes the right of the proponents of a ballot initiative to defend its constitutionality if state officials decline to do so.

The certification to the California Supreme Court delayed the ruling for some eight months. Finally, on November 7, 2011, the California Supreme Court decided that the proponents of voter-enacted legislation would have the right to defend such legislation in state courts in cases where the state declines to do so. Although this ruling by the California Supreme Court was not binding on the Ninth Circuit, or in federal court generally, the panel accepted the state court's recommendation on the question of standing and on February 7, 2012 ruled on a 2-1 vote that Proposition 8 is unconstitutional.

Many people thought that the question of standing had been settled. But the U.S. Supreme Court brought the issue back into relevance when it accepted review of Proposition 8 and specifically directed the parties to discuss the question of standing in their briefs.

The question of standing has a long history in federal courts. The Supreme Court has become increasingly concerned with the issue, perhaps as a way of limiting access to courts by parties who are actually impacted by a case as opposed to parties who simply have an ideological interest in the outcome of a case. The general rule is that for a party to have standing in an appellate court they must have more than simply a generalized interest in the enforcement of a law; instead, they must be able to demonstrate a particular and specific harm caused by the enforcement of a law. In the case of Proposition 8, the real question regarding standing is whether the proponents of the law would be harmed if the state of California married same-sex couples.

As Tom Goldstein at SCOTUSblog reports, in their filing the proponents of Proposition 8 unsurprisingly give a full-throated defense of their standing. However, in their response Theodore Olson and David Boies treat the question of standing somewhat perfunctorily, spending only seven paragraphs of their 63-page brief on it. "The brevity of the presentation on standing in the wake of a specific order from the Court is striking," Goldstein writes.

Olson and Boies are clearly more interested in the merits of the case and in crafting a sweeping and persuasive argument on behalf of a fundamental right to same-sex marriage than they are in the question of standing. The reason for this is obvious: they want the Court to issue a broad ruling on the merits rather than merely uphold the District Court's decision on the grounds that the proponents had no right to appeal.

Another respondent, the City and County of San Francisco, does devote more attention to the question of standing in their brief, arguing for ten pages that the proponents lack standing. The question of standing is also addressed seriously in the amicus brief filed by Attorney General Kamala Harris on behalf of the state of California.

But the fullest attack on the standing of the proponents comes in an amicus brief filed on behalf of Walter Dellinger.

Dellinger is the Douglas B. Maggs Professor of Law at Duke University and head of the appellate practice at O'Melveny & Myers in Washington, D.C. He also leads Harvard Law School's Supreme Court and Appellate Litigation Clinic. He served as an Assistant Attorney General and acting Solicitor General during the Clinton administration.

Dellinger's brief makes a powerful and persuasive case that the proponents of Proposition 8 lacked Article III standing to appeal from the district court's judgment holding Proposition 8 unconstitutional. The brief contends that the proponents "have only a generalized interest in the enforcement of that law, and the Court has repeatedly held that such an interest is not sufficient to establish a case or controversy under Article III. The Court should therefore vacate the court of appeals' judgment and remand with directions to dismiss the proponents' appeal."

Although most amicus briefs exercise little influence on the outcome of a case, Dellenger's brief may be an exception. It is highly focused, tightly reasoned, and well documented.

If the Court accepts the argument that the proponents of Proposition 8 lack standing, the District Court's ruling that Proposition 8 is unconstitutional will prevail and same-sex marriages will resume in California.

That will be a victory for same-sex couples in California, but it will be a limited one with no precedential value beyond California.

Insofar as such a ruling will enable the Supreme Court to evade the question of whether same-sex couples have a constitutional right to equal treatment under the law, it will be a bitter-sweet victory indeed.

The brief filed on behalf of Walter Dellinger on the question of standing in Hollingsworth v. Perry may be found here.

Briefs filed by Equality California and by the Columbia Law School Sexuality & Gender Law Clinic and the Society of American Law Teachers also argue that the proponents of Proposition 8 lack standing. Their briefs may be found on the website of the Office of the City Attorney of San Francisco, which has links to all 50 of the amici briefs filed in support of the challenge to the constitutionality of Proposition 8.

In the video below, Walter Dellinger discusses same-sex marriage with former Solicitor General Paul D. Clement, who is now defending the Defense of Marriage Act. Dellinger points to how the Fourteenth Amendment, with its equal protection and due process guarantees, fundamentally changed the country.

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