The gay-marriage cases coming before the Supreme Court this term address “the civil rights issue of our generation,” as Emily Bazelon wrote last week. And of the two cases the court has agreed to hear, it is the California case, Hollingsworth v. Perry, that raises the ultimate question of whether any state that denies gay couples the right to marry violates the Constitution.
The justices might not reach the big question in Perry, however, because the actual defendants in the case—the California governor and attorney general and the two county clerks who were sued by gay couples seeking marriage licenses—chose not to appeal the decision by district court Judge Vaughn Walker holding that same-sex couples had a constitutional right to marry. The appeals court let the sponsors of Proposition 8, the California ballot initiative that banned gay marriage, appeal Judge Walker’s decision when the state officials did not. The Supreme Court seems uncertain, however, about whether Prop 8’s defenders are the proper party to bring the case to the Supreme Court. The court asked both sides to address this question about standing, and even if the justices rule only on this matter, avoiding the central gay-marriage question in the case, their decision could be consequential.
Two years ago, I wrote that the California gay-marriage case was over—and gay marriage had won—because the state officials decided not to appeal. It’s gotten more complicated since then. The U.S. Court of Appeals for the Ninth Circuit, before reviewing Judge Walker’s ruling, asked the California Supreme Court whether the Prop 8 defenders could bring the appeal. Why ask the California court? Because the 9th Circuit, a federal court, wanted to know the answer according to state law, which is the state court’s domain. The California Supreme Court responded that under California law, the proponents of a ballot initiative measure “are authorized to assert the state's interest in the validity of the initiative and to appeal a judgment invalidating the measure.”
That would seem to settle the issue of standing in Perry. Yet, the U.S. Supreme Court’s decision to order briefing on whether the Prop 8 defenders “have standing under Article 3, Section 2 of the Constitution” suggests the story may have another chapter. So what might be the argument that the Prop 8 proponents lack standing to appeal? It would start with the proposition that there must be some limits, in Article 3, which sets the rules for the federal courts, on a state’s power to confer standing to litigate on its behalf in those courts. One such limit might be this: A state can confer this standing only on those who have some greater interest or stake in the matter being litigated than citizens generally have.
That would mean Prop 8’s backers could litigate in federal court over the validity of the process by which their referendum was adopted. But once it has been determined that a proposal like Prop 8 was properly passed and effectively changed the California constitution, the legal interest of the initiative’s proponents would be at an end. In other words, the Prop 8 proponents lack standing because the grounds for Judge Walker’s decision have nothing to do with whether Prop 8 was validly adopted. The heart of the case is whether same-sex couples have the same marriage rights as opposite-sex couples. Prop 8’s backers have no more interest in that question that any other California citizen who objects to gay marriage.
Given the fact that the California Supreme Court believes that under its system the Prop 8 proponents have standing to litigate, the U.S. Supreme Court would have to make some new law to hold that they do not. But that is not out of the question. The law in this area neither clear nor well reasoned. The U.S. Supreme Court will surely be concerned about how far states can go in authorizing litigation in federal court by citizens who themselves have no legal stake in the matter in dispute. Could it really be, for example, that decades after a state constitutional revision, citizens who in the distant past had been official proponents of the provision are empowered to intervene and participate in any litigation about the application of federal constitutional law to some matter arguably implicated by the long ago referendum? That question suggests that the need for some federal limits on state power to create standing to litigate in federal court.
Whether any plausible standing limits could preclude the Supreme Court from deciding Perry is the more difficult question. But it is important. Many of us hope that Perry is the road to gay right’s Brown v. Board of Education. But if we are instead on the highway to a gay Plessy v. Ferguson, then standing may be the last, best off-ramp available.
If the Supreme Court decides that the Prop 8 side has no standing, that would leave for another day the up-or-down decision about whether the Constitution grants a right of same-sex marriages in all 50 states, or at least in the eight of them that give gay couples all the civil benefits of marriage without calling their unions by that word. For California, it would leave in place Judge Walker’s ruling.
What is the effect of a decision of a single federal district judge that is never properly appealed? Obviously, the two couples who brought suit would have their victory. Beyond that, Judge Walker’s ruling could mean little legally, but everything in practice. The California attorney general, Democrat Kamala Harris, would likely use Judge Walker’s decision as a basis for advising all county clerks to grant licenses to same-sex couples. In theory, California state officials could go back to court and seek to reopen Judge Walker's judgment. But I don't believe that the ban on gay marriage in California would actually ever come back. A powerful social rule would protect gay marriage in the state: the normative power of the actual. That is, what is already in place, seems right. It is hard to imagine a future California governor or attorney general of either party seeking to bring back a ban on gay marriage after many thousands more California couples have tied the knot.
That this enormous result for California could follow because no one had standing to appeal Judge Walker's decision would not be as merely technical a result as it may appear. In this case, the issues of standing and the merits are in deep resonance with one other. Linking them is the fact that no one is injured when a gay couple is married. That is why the state has no rational reason to deny a license to gay and lesbian couples in the first place, and that is also why there is no injured party who had real standing to carry forward this appeal. In an alternate universe with a finite number of marriage licenses, a straight couple ordered to give up their license in order to make one available for a gay couple would have standing to sue and to appeal. But in the world in which we live, a straight couple's right to marry remains unimpaired by gay marriage. This case could be over—indeed it should be over—because no one has a legal interest in denying someone else's happiness.