[*Anya*]

POSTED IN Civil Rights Law (portion of analysis posted here)
November 28, 2011 written by VIKRAM DAVID AMAR AND ALAN E. BROWNSTEIN

The California Supreme Court Rules that Prop. 8’s Proponents Have Standing to Defend the Initiative: What Does That Mean in the Ninth Circuit and U.S. Supreme Court?

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.

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.

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.

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.