In the space below, I offer some quick analysis of the U.S. Supreme Court’s oral argument on Tuesday in Perry v. Hollingsworth, the case in which same-sex couples challenge California’s ban on same-sex marriage, the voter-adopted Proposition 8. The Court Was Presented With a False Dilemma Concerning Sponsor Standing
Over the last couple of years, I have written in a number of essays (including this one) that I think that the Proposition 8 sponsors should not enjoy standing in federal court to defend the measure, even though the California Attorney General and Governor have failed to defend. As I have explained, the Proposition 8 sponsors were never elected nor appointed by the voters, and are not accountable to them. For these and various other related reasons, the sponsors are not appropriate representatives for the State of California. In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact 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 when litigation is conducted. At Tuesday’s oral argument, many of the Justices (up to five or more, and especially the “liberal” Justices Ginsburg and Kagan) seemed to understand these problems, and so there may be a majority of the Court for the proposition that Article III’s “case or controversy” requirement is not satisfied in the present situation. Even if fewer than five Justices find sponsor standing to be a problem, the sponsor standing issue could drive the result of the case. Imagine a split in which three Justices want to reverse the Ninth Circuit on the merits, three want to affirm on the merits, and three want to vacate the lower court ruling for lack of standing. Under such a scenario, the three Justices who would prefer to reverse on the merits might nonetheless join the three who want to vacate for lack of standing, simply to erase a problematic Ninth Circuit ruling that they all feel should not remain as the law of the Ninth Circuit. The best counterargument (and it came up at oral argument), in favor of sponsor standing, is that if sponsors lack standing to defend initiatives, then elected officials can wrongly “kill” initiatives by simply not defending the measures when the initiatives are challenged. This is especially problematic because the initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people’s interests and desires, such that direct democracy is needed. And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General’s self-serving decision not to defend such a measure would rightly be viewed with great public outrage.) So, a few Justices (perhaps especially Justice Sotomayor) worried aloud, if sponsors are not allowed to defend initiatives in federal court, then the initiative device could be gutted. But this framing of the issue ignores a key middle ground position: that state law can authorize sponsors to defend initiatives (in a way that federal courts will respect and accept), but the authorization has to be done carefully and in a way the voters can see. In fashioning a workable balance between the competing concerns presented by initiative-sponsor standing, the federal courts should recognize the possibility of sponsor standing, but only when the conferral of the power to sponsors to defend an initiative is clearly provided for in state law, and addresses some of the theoretical and logistical problems raised by sponsor standing. Such a rule gives voters 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, sponsor 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. 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 (creating authorities and fiduciary duties that the proponent must honor) as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to address, among other things: (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor’s power to defend lasts; (3) the question of attorneys’ fee liability to be satisfied by public fisc if the defense fails; and (4) what the relative authority 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 sponsors. 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 by the California Supreme Court in 2011, perhaps going forward voters in California should know, and take account of, the fact 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. (In this regard, I note that the California Supreme Court ruling might not suffice even going forward, because it did not answer some of the key logistical questions about the length of time a sponsor has power to defend the initiative, etc.) In any event, because such state law clarity was certainly not in place when Proposition 8 itself was passed in 2008 (and I note here that it was passed by a slim margin), the U.S. Supreme Court could easily conclude that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself. The voters of California in 2008 cannot be said to have appointed persons whom the voters did not even know were being appointed at that time. The Consequences of a Finding That the Proposition 8 Sponsors Lack Federal Standing If the Court does dispense with Perry on standing grounds, the Ninth Circuit ruling would be vacated (erased), and the case would go back to the trial court. The named plaintiffs would (and should) get their marriage licenses (because certainly the government must give a plaintiff the relief she seeks when it defaults, that is, refuses to defend against her challenge). But the extent to which other Californians would be free from Proposition 8—and when that might happen—depends upon many complexities, including the Governor’s reaction to a ruling based on lack of standing, a potential state-wide class action lawsuit, and also the wild-card possibility that certain elected county clerks (these might be the “other people” to whom Chief Justice Roberts referred during oral argument) may be granted standing to defend Proposition 8 if it continues to be enforced in the State yet not defended by the Attorney General and Governor. The procedural entailments of a Supreme Court ruling on standing grounds are themselves very complicated, and the only reason that they weren’t explored much more at oral argument this week was, I expect, the constraint of the limited argument time. What About the Option of Dismissing the Case Altogether At the Supreme Court? If the Court doesn’t want to reach the merits of the Proposition 8 challenge, it has another option as well—to dismiss the writ of certiorari as “improvidently granted.” Under this approach, the high Court would simply decide, upon closer inspection, that it was a mistake to grant review in the case in the first place, and undo that grant. A dismissal is possible, but this course of action would need to overcome a few hurdles. First, ordinarily speaking, for the Court to dismiss a case as improvidently granted (or, to “DIG” it, in Supreme Court parlance), at least six Justices would have to agree. If four Justices want to keep the case, they typically can, since those same four Justices were all who were needed to grant review in the first place (pursuant to something known as the “Rule of Four.”) To preserve the integrity of the Rule of Four, the Court has traditionally taken the view that at least one of the Justices who voted to grant review (and more than one, if there were more than four votes to grant) would have to be among the majority who want to DIG the case. And at oral argument, Justice Scalia seemed to believe he spoke for at least four of the Justices who voted to grant review when he suggested that the grant was water under the bridge (his actual words were that “we have crossed that river.”) So unless Justice Kennedy and Chief Justice Roberts both want to DIG the case (assuming one or both initially voted to grant review), mustering a DIG would seem to be hard. Another reason a DIG may be difficult is that, unlike a ruling that the initiative sponsors lack standing, a DIG would leave the Ninth’s Circuit’s ruling intact. The Ninth Circuit ruled that Proposition 8 was constitutionally irrational because: (1) it repealed an existing state-law right to same-sex marriage (rather than simply declined to recognize one); and (2) California had done so much to equalize the treatment of gay and straight couples that it no longer had any good reason for not extending the marriage label to gay couples. None of the Justices seemed to think that this reasoning made sense. (Justice Kennedy called it “very odd,” and Justice Alito asked if the plaintiff’s lawyer was “serious” about this argument. Even Justice Breyer voiced concern over the perverse incentives it creates.) Because the Ninth Circuit’s ruling could have non-trivial spillover effects in other Western states outside of California and/or externality effects on rights other than the right to marry, many Justices may not want to leave it on the books. My focus on the procedural issues in Perry in no way suggests the merits discussion at oral argument was unimportant or uninteresting. But space constraints require that I defer them—and a discussion of the oral argument in the Defense of Marriage Act (DOMA) case, Windsor v. U.S.—until future writings.