The week before last, the California Supreme court held that the official sponsors/proponents of Proposition 8 (Prop. 8) have the authority to defend the initiative in state court on behalf of the voters who passed Prop. 8, now that elected representatives have declined to defend the measure against challenge.
This ruling makes it considerably more likely that the same-sex-marriage controversy will end up in the U.S. Supreme Court sooner rather than later. If the California case does reach the high Court, however, it is still quite unclear, as we explain below, whether the Court will rule on the merits—or instead dismiss the appeal on procedural grounds.
A Summary of the Prop. 8 Litigation Thus Far
Prop. 8, an initiative amending California’s constitution to ban gay/lesbian marriage, was enacted in 2008. In 2009, same-sex couples who sought marriage licenses filed suit in federal court in San Francisco against California officials, alleging that Prop. 8 violated privacy and equality rights under the Fourteenth Amendment to the U.S. Constitution.
The two elected statewide officials who ordinarily defend state enactments against challenge—the Attorney General and the Governor—both declined to defend the initiative’s validity. The district court judge, Vaughn Walker, allowed the case to proceed to trial, during which Prop. 8’s defense was put on not by elected officials, but by the proponents of the measure who had drafted and collected signatures for it, and who had been permitted to intervene in the lawsuit.
After trial, Judge Walker struck down Prop. 8, ruling that it does indeed violate the federal Constitution. The proponents of Prop. 8 (but not the Governor or the Attorney General) then appealed to the U.S. Court of Appeals for the Ninth Circuit. At that point, the Ninth Circuit posed a question that had not been adequately analyzed theretofore: Does the dispute present a real “case or controversy” that federal courts are permitted to resolve, given that the only defenders of the measure in court are unelected private proponents? In legal terms, the question is whether the initiative proponents have “standing” under the federal Constitution to defend in federal court.
To decide this question, the Ninth Circuit asked for input from the California Supreme court. Using a process known as “certification,” the Ninth Circuit asked the California Justices whether, at least as a matter of California law, initiative proponents enjoy some special capacity to represent the state’s electorate when public officials decline to defend a law adopted through direct democracy.
On November 17, the California Supreme court unanimously said “yes”—for Prop. 8 and for all other initiatives, proponents can defend when public officials won’t. The essential reasoning was straightforward; it would not make sense for elected officials to have the power to let an initiative die for lack of a defense, when the initiative device itself is supposed to be a check on elected officials. Because elected officials may resent an initiative that has circumvented their roles or limited their power, voters have a “legitimate concern” that such officials will sometime fail to undertake a legal defense of initiatives “with vigor” or with “the objectives and interests of  voters paramount in mind.”
In addition to answering this state-law question, the court—in a somewhat unusual and ambitious move—also rendered its view that proponents should have standing to defend initiatives in federal court (where the Prop. 8 litigation is taking place) as well as state court. The California Justices acknowledged that standing in federal court is a matter not of state law, but rather federal law, and thus one for the federal courts ultimately to decide. But the California court offered its own reading of U.S. Supreme Court precedents, and indicated its belief that to the extent the U.S. Supreme Court has been skeptical of initiative-proponent standing in federal court in the past, that was only (or largely) because, in the states involved in prior cases, state law did not authorize proponents to represent the state, whereas in California proponents are authorized to do so.
With this input, the Ninth Circuit will now decide whether the Prop. 8 proponents enjoy standing in federal court. It is likely the Ninth Circuit will answer that question in the affirmative, given the signals it sent in crafting the questions it certified. That means the Ninth Circuit panel will likely address Prop. 8 on the merits.
Then if—as is very possible, given the ideological makeup of the three-judge Ninth Circuit panel—the panel affirms Judge Walker’s ruling and strikes down Prop. 8 (holding that there is a federal constitutional right to same-sex marriage), and if the Ninth Circuit does not revisit the case as a whole (en banc), the U.S. Supreme Court may have no choice but to take up the dispute.
After all, under such a scenario, same-sex marriage would be a federal constitutional right West of the Rockies, but nowhere else. Lack of uniformity as to the scope of such a major federal right could not be tolerated for long.
What Might Happen in the U.S. Supreme Court—How Would the Standing Question be Evaluated?
If the U.S. Supreme Court does take the case, it is hard to say what the outcome will be.
The Court could resolve the lawsuit based on the merits of the equal protection and right-to-marry arguments. If that were to happen, we can say quite confidently that the four most conservative Justices would reject a federal right to gay marriage, but it is harder to know what any of the other five would do.
Or the Court could dispense with the case on standing grounds, ruling that, notwithstanding initiative proponents’ rights under California law, proponents don’t enjoy standing in federal court.
In this regard, it is worth noting that many analysts believe that the Justices in DC use manipulable standing rules to regulate their docket and avoid tackling substantive issues when they want matters to percolate more in the lower courts—and in society—before a final resolution is reached. For example, it is arguable that this occurred in the case a few years back when the Court invoked standing rules to dismiss the challenge to the inclusion of the words “one nation under G-d” in the public school recitation of the Pledge of Allegiance, rather than address the contentious issues the case raised under the First Amendment’s Establishment Clause.
On what basis might the U.S. Supreme Court reject initiative proponent standing, even after the California Supreme court has determined that proponents can speak for the state in state court?
Why the Supremes Might Decline to Find Federal Standing: Until Now, Proponents Have Not Been Elected or Specifically Deputized by the People
Answering this question requires looking carefully at what the U.S. Supreme Court has said in expressing skepticism about proponent standing in federal court in the past, and also at the range of issues the California Supreme court failed to address.
In its most elaborate discussion of proponent standing—in a case involving an Arizona initiative being challenged (and defended by proponents only) in 1996—the U.S. Supreme Court expressed its “grave doubts” about proponent standing and observed:
We have recognized [in a case from New Jersey, Karcher v. May] that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. [The Arizona initiative proponents], however, are not elected representatives, and we are aware of no Arizona law appointing initiative proponents as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as [constitutionally-] qualified defenders of the measures they advocated.
The California Supreme court has now made clear that California law—perhaps unlike Arizona law—authorizes proponents to represent the state in state court. But is that enough? Maybe not. Note that the U.S. Supreme Court pointed out at least two problems with proponent standing in Arizona – lack of state law authorization, and also the fact that proponents are not “elected representatives” or “appoint[ed] agents.” The California court ruling may address the former, but does precious little to blunt the latter.
Why should lack of election or formal appointment as a state agent matter? Because Prop. 8 proponents were never actually chosen by the people, nor designated by any of California’s elected representatives, to speak for the state’s electorate. Of course, the measure that the proponents proposed was adopted, but that doesn’t mean that the electorate decided—or intended—that these particular proponents ought to speak or act for the voters in any representative capacity.
This lack of formal election or appointment raises a number of problems that may trouble the U.S. Supreme Court, none of which the California Supreme court fully addressed. First, there is a difference between the person (or group) who drafts and proposes a law, and the institution or body that is empowered to enact a proposal into law. In the context of the standing of legislative bodies, the U.S. Supreme Court has conferred standing on only those legislators who are elected leaders of the legislative body, and who speak not for themselves as individual lawmakers, but rather on behalf of the entire lawmaking body. By contrast, the individual members of the legislature who may have been involved in—or even central to—the drafting of or lobbying for a bill do not enjoy standing to defend the measure.
In the context of an initiative, the proponents are the persons who proposed the measure and offered it to the enacting body for approval. But millions of voters comprise the body whose action made the initiative proposal law. Unlike leaders of legislative bodies, who are chosen through established procedures, initiative proponents, without more, have no clear basis for asserting that they have been authorized or appointed by the voters to litigate on the people’s behalf.
Second, and related, initiative proponents have no ongoing tie to the electorate; there is no way for them to be held accountable to the voters. Unlike legislators, they have no incentive to act in ways that reflect either the wishes of the people at the time a measure was adopted, or the wishes of the people at a later time when litigation ensues.
A law sometimes remains on the books long after the political support that generated it has diminished, and after interim constitutional law decisions cast considerable doubt on the law’s continuing validity. Allowing the proponents of initiatives to defend the constitutionality of a law that the current generation of voters believes should be struck down raises profound questions of democratic legitimacy.
Moreover, initiative proponents may be driven in their tactical litigation decisions by an ideological purity or zeal that did not exist among the electorate who passed the measure. And, again, there is no way for the people who actually adopted the initiative to influence the sponsor-proponents to moderate their positions in a lawsuit to better reflect the will of the enacting electorate.
Third, and finally, there may be no clear structure or hierarchy within initiative-proponent groups or organizations, making the identification of authoritative spokespersons for initiatives far from easy.
Sometimes an initiative proponent is a single individual, but quite often the proponents of an initiative are multiple persons, with no acknowledged leader, or an organization with internal processes for picking a leader that may be non-transparent, non-democratic, or even non-existent.
For all of these connected reasons, initiative proponents may lack credibility—and, indeed, may be rogue actors whose current views, sentiments and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted. While not all these concerns may be present in the context of the current litigation involving Prop. 8, some are, and in any event the California Supreme court standing decision was predicated not on the facts of this particular case, but rather on the generic question of initiative sponsor standing in all cases.
Other Troubling Questions Left Unresolved by the California Supreme Court
Unfortunately, the California Supreme court failed to provide a detailed analysis of any of these pitfalls. Nor did the court provide specific input or guidance on a number of other key questions:
(1) How is litigation in which proponents defend in lieu of public officials to be financed?
Are proponents entitled to be reimbursed by the state for their defense costs—even if one reason the elected officials declined to defend the challenged law may have been to avoid wasting the taxpayers’ money by trying to save a measure that seemed likely to be invalidated? And if the plaintiff/challengers win, do proponents (or the state) have to pay the plaintiffs’ lawyers fees, as the state would be required to do if elected officials had defended the law and lost?
(2) How is conflict between elected officials who do defend an initiative and proponents who want to intervene to defend it as well to be managed?
If elected officials want to make certain legal stipulations or concessions for strategic reasons, must a reviewing court accept these stipulations or concessions, even if the proponent co-parties argue that the concessions/stipulations represent an instance of the elected officials choosing not to defend vigorously? (The California Supreme court also seemed to give short shrift to coordination problems when it noted that county officials sued in the Prop. 8 litigation could have standing to defend and appeal even if statewide officials—the Attorney General and the Governor—chose not to. If every county took a different legal position, how would that mess be sorted out?)
(3) What role, if any, does the legislature have in providing solutions to the problems listed above and others that may arise?
The California court’s opinion grounded the proponents’ authority to defend both on the structure of the California constitution, and on relevant state election code statutes. This suggests, at least implicitly, that the legislature could amend its statutes to alter the authority proponents enjoy. For example, the legislature might enact a law denying standing to initiative proponents in litigation that commences more than five years after the initiative became law. Yet the overarching rationale of the opinion—that the initiative device itself reflects distrust of elected officials, and that therefore such officials should not be allowed by any means to undermine an enacted initiative—suggests that legislative efforts to provide some order here might be viewed skeptically.
It seems somewhat surprising that the court did not take up any of these questions in meaningful depth. Given that the court went out of its way to opine on federal law (a body of law over which it doesn’t have any claim of interpretive authority relative to the federal courts), one might have expected the California Justices to have fully exhausted and resolved the myriad state law issues that its own ruling raised (over which the California court does have the final say.)
In an earlier essay, we argued that in fashioning a workable balance between the competing concerns presented by initiative-proponent standing, the federal courts should recognize the possibility of proponent standing, but only when the conferral of power to defend on proponents is clearly provided for in state law. We suggested this rule so that voters would have adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.
Decisions issued in years past by the California courts that permit, but do not discuss, proponent standing seem inadequate to confer notice on the voters since, as the U.S. Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court’s jurisdiction over a matter are not entitled to any precedential weight. Such “drive-by” jurisdictional rulings, in which California courts have, in the past, allowed proponents to defend initiatives, probably should not suffice to establish proponents as “appointed agents” of the state.
Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to spell out who within the proponent organization(s) is entitled to make key litigation decisions and concessions, and also what the relative power of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative proponent(s).
Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision two weeks ago, perhaps voters in California should know, going forward, that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court.
That knowledge, in light of the complexities mentioned above, may give some number of swing voters pause. But since such state-law clarity was not in place when Prop. 8 itself was passed (and we note here that it was passed by a slim margin), we wouldn’t be surprised if the U.S. Supreme Court were to conclude that the requirements of federal standing are not necessarily met by the proponents in the Prop. 8 setting itself.
We won’t know how any of this will play out for quite a while. The Ninth Circuit could be expected to issue its ruling sometime in 2012, but it’s hard to see the Supreme Court getting involved until late 2012 or (more likely) 2013, at the earliest.