The best way for Proposition 8 to lose in court.

The law, lawyers, and the court.
Aug. 13 2010 4:21 PM

The Best Way for Proposition 8 To Lose

Let's cheer if gay marriage opponents decide not to appeal—but not if they can't.

Ted Olson and David Boies. Click image to expand.
David Boies and Theodore Olson 

In allowing gay marriages to go forward on Aug. 18, Judge Vaughn Walker noted that Proposition 8 proponents may not have standing to bring an appeal. How can that be, since they were allowed to defend Prop 8, the voter referendum banning gay marriage, at trial? And if they really don't have standing in court to continue the fight for Prop 8, would that be a good way to resolve the case?

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Andrew Sullivan has been tackling those questions in a series of posts. As I read it, he's OK with kicking the case out of court for lack of standing because it would hoist conservatives on their own petard. After all, they're the ones who usually cheer for narrow standing requirements. I take his point. And I surely see the benefits of halting this case before an appeal. No matter how many times Prop 8 big-shot lawyer challengers Ted Olson and David Boies say they know the heart of Justice Kennedy, and promise us that it is a heart that beats for gay couples at the altar, the smart money for same-sex marriage advocates is still on keeping this case—at this moment in time—away from the Supreme Court.

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But in the end, do we really want gay marriage to become legal in California because of what's essentially a technicality? That seems a highly unsatisfying resolution to what was always billed as an epic case, and it would expose in the left a bit of hypocrisy about standing much as it would the right. Far better would be for the Prop 8 proponents themselves to decide not to bring an appeal. David Barton of the American Family Association has already floated that idea. If conservatives cave in on their own, they'd implicitly concede how terribly weak their case was at trial, whatever excuse they come up with. (Barton's was to cast Kennedy as a sure vote in favor of a constitutional right to gay marriage. Amusing that he thinks so, but I still wouldn't want to bet on it.)

What's standing amount to? It's a bar you have to cross to get into court in the first place. In federal court, you have to have "Article III standing," which boils down to showing that you have a real, not conjectural, injury, which the lawsuit you're bringing can redress. Standing requirements have been heightened largely by, yes, conservative judges: A key case is Lujan v. Defenders of Wildlife, in which Justice Antonin Scalia held for the Supreme Court that a group of environmental groups lacked standing to challenge the way in which the government was enforcing (or not enforcing) part of the Endangered Species Act. The left complained mightily that if the green groups couldn't push for stiffer enforcement of the nation's environmental laws under a Republican administration, no one could. Scalia told them, in effect, "tough."

There are a couple of other Supreme Court decisions, flagged by New York Law School professor Arthur Leonard, which more directly address the situation in the Prop 8 case, where the central standing problem is that the governor and the attorney general, speaking for the state of California, have opted not to defend this voter referendum in court. They don't like Prop 8, and they think it may be unconstitutional. That's why the Prop 8 proponents, and not the state, were called upon to defend the voter referendum at trial. Why on earth wouldn't they be able to continue in that rule on appeal? Because of two other Supreme Court cases, Diamond v. Charles in 1986 and Arizonans for Official English v. Arizona in 1997. In Diamond, the state of Illinois chose not to appeal a lower-court decision finding parts of a 1975 abortion law unconstitutional (the law made it criminal to perform an abortion under some circumstances). An anti-abortion doctor tried to appeal in the state's stead, arguing that he had standing because of his personal and professional interest in the case. The Supreme Court told him no, because he "was a private party whose own conduct was neither implicated nor threatened by the Abortion Law." So, no standing because you don't like a law related to the work you do, even if it's a ballot initiative that the state didn't want to stand up for.

The Arizona case was about a state ballot initiative that made English the official state language. After a state employee sued and the district court found that the official-language law was unconstitutional, the state decided not to appeal. So the appeals court let the sponsors of the ballot initiative step in to defend the law. You can see a clear parallel to the Prop 8 situation. But when the case got to the Supreme Court, it was thrown out on other grounds. (The state employee no longer worked for Arizona, so the suit was moot.) Along the way to saying that, Justice Ruth Bader Ginsburg, writing for a unanimous court, expressed "grave doubts" that the initiative sponsors actually had standing. "Petitioners' primary argument—that, as initiative proponents, they have a quasi-legislative interest in defending the measure they successfully sponsored—is dubious because they are not elected state legislators, authorized by state law to represent the State's interests. … Furthermore, this Court has never identified initiative proponents as Article-III-qualified defenders."

This isn't a settled question. Ginsburg's "grave doubts" on behalf of the court aren't the holding of the case, which makes them dicta— the stuff judges say along the way that doesn't bind the lower courts. Still, you can see why Boies and Olson argued that the Prop 8 proponents may not have standing, and why Judge Walker agreed that they had a point.

At the same time, isn't it odd to think that a majority of the voters could pass a law, and then just because the governor and the attorney general don't like it, no one gets to stand up for it on appeal? Especially after they've been allowed to do so at trial? It's an outcome that allows a court challenge to trump voter preferences in a way that just seems undemocratic and out of joint. One of Sullivan's readers argues that to deny the Prop 8 proponents standing would be to get to the heart of the case for gay marriage, because it would show that "their interests"—the interests of the gay-marriage opponents—weren't harmed by Walker's decision. "That is, they lose nothing as a result of gay marriage being legal." It sounds great rhetorically. But it's declaring victory before actually winning on the merits. And to win because your opponent wasn't even allowed to fight is not at all like winning after he fought to the death and you creamed him. Or like winning because he saw your far superior strength, and forfeited. Slate V: Watch Mark Fiore's animated commentary on activist judges:

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