Today's opinion from the California Supreme Court declaring that initiative proponents have the right to step into the shoes of the state to defend their ballot initiative is a step toward the ultimate resolution of Perry's challenge to Prop 8, but it is by no means the final word on the matter.
It is a victory for pro-same-sex marriage forces in that we are now poised for a full victory on the merits, rather than a half victory on standing. The result is also rational — those who know how sacrosanct California's judiciary treats the initiative power found it impossible to imagine the defender of the rights of Californians deciding any other way. But, even though the parties expect the Ninth Circuit to follow this decision and proceed directly to the merits of the constitutionality of Prop 8, the decision is unsatisfactory. It has only one benefit: now we can proceed to the merits, as we are eager to. And, thankfully, that is no small benefit.
Standing in this case is part of a federal court's jurisdictional requirement, meaning that if one of the parties does not have standing as a matter of law, the Constitution simply does not allow the court to hear the case. Notably, standing is not something parties can concede — that is, we cannot just assume ProtectMarriage has standing so we can get to the merits. That is why the American Foundation for Equal Rights (AFER) argued against standing for ProtectMarriage, but is happy with the result today.
CONTINUED, AFTER THE JUMP…
Still, as a jurisdictional requirement, standing should not be taken lightly or granted on the back of flimsy precedent. Departing from Supreme Court precedent of Karcher and Arizonans for Official English, the California Supreme Court ignores the fact that there is no state law that grants initiative proponents the power to defend their initiative in court. Instead, it relies on a tradition of expansive initiative rights, of a history of initiative proponents defending their creations, and the state's liberal standing rules to prophylactically create an "unbroken tradition" of standing. But, that tradition derives exclusively from state cases — initiative proponents defending their law in state court.
When the Ninth Circuit first certified the question of standing to California's highest court, it noted that it would follow the decision of that court. Most commentators believe that because of that promise, the Ninth Circuit is unlikely to do anything but recognize ProtectMarriage's standing in Perry. But, it need not. Just because state law would allow initiative proponents to step in does not necessarily mean that federal law would do the same. As Ted Olson noted on a post-decision release press conference call, "the issue of standing is still in this case;" the Ninth Circuit is simply unlikely to do its duty. In fact, if AFER wins at the Ninth Circuit, it will try to argue that the Supreme Court should not take the case because initiative proponents never had standing. What's more, if the case does reach the Supreme Court, the justices themselves are free (and are likely) to address the jurisdictional question of standing from the beginning.
Regardless of the California Supreme Court's obfuscation, federal standing is still a matter of federal law and no number of state cases can influence federal law.
California gets around this fact by arguing that there are two independent bases for federal standing: the state's interest or the particularized interest of the moving party. Today, the court found that California initiative proponents should be able to step into the shoes of the state, i.e., take over the state's interest, when the arms of the state refuse to defend the particular law the proponents wrote, proposed, and helped enact. As such, a particularized interest, which requires a specific harm, is unnecessary. Even if that were an accurate description of federal standing law, the question of proponents' authority to take up the state's interest cannot be fully answered by state law.
That is true, especially in this case, where the people seeking to fill in for the state are not elected officials and there is no explicit state statute that grants them the authority to assume the state's interest. That gaping abyss in the California Supreme Court's decision does not matter to the judges of that court; after all, they argue, California has a long tradition of granting expansive rights to defend ballot initiatives to their proponents. But, that long tradition exists only in the state courts of California.
In the end, even though this opinion is of dubious merit, we should see the silver lining. We now have the opportunity to take a solid case for the unconstitutionality of a same-sex marriage ban to a friendly panel on the Ninth Circuit. And, that opportunity should come quickly. The Ninth Circuit had this case fully briefed over a year ago and, therefore, should be able to issue its decision on standing and merits relatively quickly. The next steps — depending on which side emerges victories — could see AFER's team of Ted Olson and David Boies before the en banc Ninth Circuit or at the Supreme Court, arguing for marriage equality on the stage of One First Street.
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Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.
