Proposition 8 and Standing: The Waiting Game

By Associate Professor Doug NeJaime

Today, the Ninth Circuit Court of Appeals issued two crucial orders in Perry v. Schwarzenegger, the federal challenge to California's Proposition 8. But rather than get to the merits of the question -- whether California's denial of the right to marry to same-sex couples violates federal equal protection or due process principles -- the panel dealt with threshold questions of standing. And at least one member of the court, Judge Reinhardt, seems frustrated by the roadblocks standing between the court and the merits.

In a per curiam opinion, the panel asked the California Supreme Court to weigh in on the question of standing. Specifically, the judges asked the state court to determine whether "the official proponents of an initiative measure possess either a particularlized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so." In other words, now that the California Governor and Attorney General refuse to defend the marriage ban, can the groups behind Proposition 8 step in to defend it? If the Proposition 8 proponents do not have a state-created right to defend their intiative, then the Ninth Circuit would be compelled to dismiss the appeal for lack of standing and leave the substance of marriage equality for another day.

Emphasizing the importance of the initiative process in California's state constitutional framework and finding glimmers of hope in dicta from California Supreme Court opinions, the per curiam opinion expresses some optimism that the California Supreme Court will find that the proponents have an interest such that they may defend Proposition 8. But optimism turns into frustration in Judge Reinhardt's concurrence. Writing separately to explain to the public why the issue of standing is stalling (and potentially blocking) a decision on the merits, Judge Reinhardt points to a number of miscues that led to this impasse.

Why didn't the plaintiffs' lawyers, David Boies and Ted Olson, name more defendants in the suit -- what Judge Reinhardt refers to as "a simple matter of pleading"? Had they done so, surely one of those defendants would have been willing to defend the initiative.

Why haven't the Attorney General and Governor defended the proposition, even if they continue to doubt its constitutionality? While Judge Reinhardt seems sympathetic to their substantive position, he also seems confused by their decision to the extent it could frustrate the goal of the plaintiffs -- "to establish a constitutional right to gay marriage . . . by obtaining a decision of the Supreme Court to that effect.

Why didn't the proponents find a more suitable intervenor than Imperial County, which couldn't even get its Clerk to participate? In a separate order, the panel dismissed Imperial County's appeal for lack of standing and affirmed the district court's denial of the county's motion to intervene in the case. While Imperial County offered only its Deputy Clerk, Judge Reinhardt suggested that of the forty-two counties that voted for Proposition 8, "[s]urely had those seeking an intervenor contacted other of those counties instead of relying on Imperial County they could have found a Clerk who would have presented the issue whether a Clerk rather than a deputy has standing.

All of this is to say that in Judge Reinhardt's view, the issue of standing was avoidable, and everyone -- the public, the Proposition 8 proponents, and California same-sex couples -- would have been better off without it. Locating this case within the historical trajectory of Brown v. Board of Education and Roe v. Wade, Judge Reinhardt suggests that what the public expects out of the federal courts is resolution of important constitutional questions, not passes based on procedural complexities. And at least Judge Reinhardt seems eager to fill this constitutional role -- to provide a determination of same-sex couples' federal constitutional rights.