Could the Prop 8 challenge end on “standing” grounds?

December 24, 2012

SCOTUS ClipboardIf you have been reading our posts about the two same-sex marriage cases before the Supreme Court (U.S. v. Windsor and Hollingsworth v. Perry), you’d know that when SCOTUS agreed to hear both of the cases, it added additional questions for the parties to brief and argue.

I’ve already discussed the questions on Windsor, and so I’ll now tackle Perry’s question, and I’m going to come at it in much the same way as I did for Windsor: I’m going to make predictions on how the Court will rule based on the implications of each decision.

Supreme Court LGBTIn case you’re hitherto unaware, Perry is the challenge to California’s Proposition 8, a 2008 ballot initiative that re-illegalized same-sex marriage after the state’s supreme court legalized it earlier that year.

The question added by the U.S. Supreme Court asks whether Prop 8’s supporters have standing in the case.

Why wouldn’t they?

Prop 8’s supporters are the ones defending the law since the state of California has declined to do so, making the lawsuit a fight between the amendment’s challengers and the amendment’s sponsors.

Actually, then, the more appropriate question seems to be “why would they?” – an especially poignant question in light of the 1996 Supreme Court ruling Arizonans for Official English v. Arizona.

In Arizonans, the state declined to defend from legal challenge a ballot measure that required state employees to speak only in English while serving the state, and the measure’s original proponents took up the challenge instead.

The Supreme Court didn’t rule on the merits of the case because the state employee who feared sanctions for speaking Spanish at work since resigned from her position, rendering the case moot.

However, the unanimous Court did express “grave doubts” as to whether the initiative’s supporters had standing to defend the case – specifically, SCOTUS found “dubious” the supporters’ argument that, “as initiative proponents, they have a quasi-legislative interest in defending the measure they successfully sponsored.”

This precedent would seem to not bode well for Prop 8’s supporters, since their argument is essentially the same.

Their argument’s saving grace is that unlike in Arizonans, the California Supreme Court found that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State,” and, relying on this finding, the Ninth Circuit ruled that Prop 8’s supporters had standing to defend.

Still, the Supreme Court has enough legal authority to decide whichever way it wants, so I would submit that the Court’s decision will be more heavily influenced by the possible consequences of both outcomes.

If the Court finds that the Prop 8 defenders lack standing, the Ninth Circuit’s opinion would be invalidated because the incorrect party appealed from the district court’s decision (in other words, the appeal would be ruled improper and should have never occurred).

This would mean that Alameda and Los Angeles Counties (the only county clerks named in the original complaint) would be required to start issuing same-sex marriage licenses upon request, and, if California Governor Jerry Brown does not order every other California county to do the same to ensure statewide uniformity (an unlikely possibility), the Perry plaintiffs would sue to require it.

The result: same-sex marriage would be legal in California once again.

Believe it or not, this would probably appeal to SCOTUS’s conservatives opposed to same-sex marriage, and here’s why:

True, same-sex marriage would be legal in the nation’s most populous state, but such a result would have been reached without making any substantive rulings on whether the U.S. Constitution forbids states from banning same-sex marriage (rulings that would, more likely than not, favor same-sex marriage).

If SCOTUS finds that Prop 8’s defenders have standing, then the Court would move on to decide the case on its merits (which could still go either way, but, as mentioned above, would likely tilt in favor of striking down Prop 8).

However, if the Court does choose this route, it will likely be cautious in delineating the amount of authority that can actually be delegated by state governments to members of the public, since it has historically been wary of a democracy that is too direct.

I’m not really 100% sure on what the final verdict will be on this prediction, since the Court’s ruling here will likely fit into the Windsor ruling.

For reasons I’ll get into in forthcoming posts, I believe that the Supreme Court will want to reach the merits of Perry, and thus will likely find unanimously that standing exists for Prop 8’s supporters.

Hollingsworth v. Perry

Question Presented

Whether petitioners have standing under Article III, §2 of the Constitution in this case.

Lower Court’s Decision

Yes.

My Prediction

AFFIRM 9-0.