Revisiting standing

A Commentary

Timothy Kincaid

December 10th, 2012

Some on-site discussion about the standing decision suggests that we revisit this issue. Here’s the background:

When Perry v. Schwarzenegger was decided for the plaintiffs (overturning Proposition 8), the Governor and Attorney General accepted the decision. They did not do so as Arnold and Jerry, but as the democratically elected representatives of the people of the State of California.

This put two democratic decisions at conflict: the people elected Schwarzenegger and Brown to act on their behalf, and the people voted for Proposition 8. But the elected representatives were choosing not to fully support the proposition for which the people voted.

This presented a problem for the Ninth Circuit Court of Appeals. Precedent suggested that unless the state had a provision for appointing an appellant other than the named defense, then there was no standing for appeal. Yet those who supported the Proposition were arguing that politicians were defying democracy.

The Ninth Circuit punted. They asked the California Supreme Court whether California law had a provision by which someone other than an elected representative could represent the state.

The California Supreme Court were worried that the will of the people in a direct vote might be somehow thwarted by their elected representative choosing not to appeal the court’s ruling. They saw this in terms of a greater threat: that politicians would torpedo voter initiated controls on their elected officials thus neutering the whole initiative process.

Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.

But, as I see it, their ruling has four possible flaws.

First, if there is such a thing as “legislating from the bench”, this is it. They did not point to any statutes, code, or even the legislative will behind such. Rather they found “logic” and “reason” to be the factors under consideration. This was entirely an outcome driven conclusion.

Second, their decision can be seen as a stretch. It does seem reasonable to state that an initiative supported by popular vote must have a defense. But to say that an initiative stands apart from any other state interest and deserves appeal, whether with the support or opposition of an elected official, seems to be an answer that was driven too specifically by the emotions and through the prism of this very controversial moment.

Suppose that the voters of California supported an initiative that was endorsed by the Governor and Attorney General. And suppose that they fiercely defended the initiative in federal court only to be informed, in no uncertain terms and with unquestionable precedent and the weight of legal consensus, that the initiative was a violation of the US Constitution. Do they then have no right to accept the ruling? This ruling would suggest that no party ever has the right to any decision other than in favor of appeal.

The third possible flaw with the California ruling was that it was based on the presumption that the people of the state wanted the proposition to be supported on appeal. In protecting the will of the people, it presupposes the will of the people.

It might seem logical that the people want endless appeals. After all, they voted for this initiative. But that is not by necessity always true. It is also possible that the people of the state of California voted against same-sex marriage but, upon finding that it violated the US Constitution, accepted that decision and wished to move on with their lives.

Fourth, and perhaps the most questionable, is that the California Supreme Court selected who would be assigned standing in cases of this nature. Without any legislative or constitutional language suggesting that proponents – as opposed to an advocate or elected official or anyone at all – had some special advantage, the court just pointed and said “them”.

There is logic to the selection, up to a point. After all, as proponents for the bill, they might in this case be assumed to be best equipped to defend it.

However, this is a wild assumption. I’ve known a number of initiatives that received support from voters but whose proponents were loons. Sometimes the people can endorse an idea without for a moment endorsing the person who proposes it. And if there was a group less representative of the voters of California than the proponents of Proposition 8, I’d be hard pressed to find them.

But, nevertheless, the Ninth Circuit leaped on the opportunity not to make that decision and accepted the guidance of the California Supreme Court. Who better to direct as to who would represent the state?

But that does not mean that the Supreme Court of the United States will go along with that decision. Just as the California Supremes found a necessity of protecting the rights of the people from their elected representatives, the US Supremes may feel a need to protect the rights of the people from their unelected judiciary’s creative finding.

Or the SCOTUS may find that states may assign such lunatics as they like to their defense and through whichever means they prefer. At this point we don’t know.

But the decision to accept Perry AND to discuss standing indicates that the court wishes to rule on the matter one way or the other. And this ruling will greatly clear up what is an increasingly unclear area of federal law.


December 10th, 2012

The issue of standing is completely within California State law. If the state decides that so-and-so has the right to defend them in court, then I don’t see how any part of the federal government can deny it. It may have been incorrectly decided under California law, but that’s not the responsibility of a federal court to overturn. They only have say in federal matters.


December 10th, 2012


Federal court is a federal matter though.

Neon Genesis

December 10th, 2012

It seems to me like the whole argument from popular vote is made completely invalid when the vote is being made based on lies and disinformation for the purpose of taking away the rights of an entire class of people. If we go by the logic of the Prop 8 proponents, then the state of Mississippi should have the right to vote on a ban of interracial marriage just because the majority of Mississippi citizens might want it. But it seems to me that in Loving v Virginia, the Supreme Court had determined that some rights cannot be subjected to popular vote and that some rights should be protected by the federal government.

I’m pretty sure this is why people like James Madison formed the separation of powers in the first place in order to protect the minority from the tyranny of the majority. This argument is also made invalid by the mere fact that even after the four states from this past election voted in support of gay rights, the Religious Right still threw a hissy fit and is already plotting ways to get the vote overthrown, so clearly they don’t believe their own arguments, or they only believe them when it’s their side that has the popular vote.


December 11th, 2012

You can see the full decision of Supreme Court of California e.g. here:

They have there full long discussion about how they see the influence of state law on federal standing (so at least – it is not such an obvious thing), and they explicitly say that they do not ultimately decide Article 3 standing (end of the full paragraph on p.14, footnote 7 on p.11).

I’m not sure but if I understand correctly, they basically said “under CA law proponents would have standing for any proceedings (defending constitutionality, appealing etc.) in the state courts; dear feds, decide yourself if it’s enough for standing in your court”…

It’s kind of the other way around: if SC of CA said that proponents don’t have standing even under the state law, then federal court would really have no basis to grant standing; if SC of CA said what they had said then federal court could but would not have to treat this as a justification for federal standing. 9 Circuit did. Not obvious how SCOTUS will look at this.


December 11th, 2012

Sort of a sidebar, but tickled up by the discussion of “protecting the will of the people” from elected officials — do the people even have the right to curtail the civil rights of a minority by plebiscite? It would seem that Romer v. Evans says no. That question probably has no implications for the standing issue, but it’s one that has bothered me for a long time. That’s also the flaw I found in the 9th Circuit’s decision: the idea that once rights have been granted, they can’t be taken away, when our whole understanding of fundamental rights is that they are not granted, they are intrinsic.

Any legal geeks out there care to address this one?


December 11th, 2012

Timothy, Thanks for this article, but can you address the fact that the California Supreme Court relied on two federal cases to grant standing? Kercer v May and Arizonanas for Official English v Arizona. They also relied on California State Law, ammended in 1911, which grants standing to proponents in such cases, as they have been granted the rights and responsibilities to manage and maintain as well as the right to file pettition. As this is settled California Law (the only exception in regards to this particular case is the actual language on the ballott. Most inititives have a statement of fact that they can sue in regards to the proposal).

I’m just having some difficulty in accepting this idea, as it was rightfully decided under California Law, backed up by two cases regarding Federal Law and Standing, and based on the inititive process as outlined in California and as settled law since 1911.

I’m glad (for once) that I could propel the discussion rather than dampen it!!

Timothy Kincaid

December 11th, 2012

Robert I’m not sure what else to say. But it all comes down to the fact that this is a federal court case and it is federal law, interpreted by SCOTUS, that lays out the rules for what happens in federal court.

It may seem a simple matter. “The state” has picked it’s defense. But the state, as an entity, may not have that right. And SCOTUS takes a long-haul view of such matters.

In matters involving rights, the state and the people are generally at odds. SCOTUS can’t just simply say ‘well the state wants this or that so we accept it’. Otherwise you could have a unified legislature, executive, and judiciary in a state like Alabama make horrific decisions which would strip rights and representation from the people.

SCOTUS may well find that the proponents have standing. In fact, it’s possible that they took this issue to emphasize that point.

But the decisions of a state court do not dictate the rules of a federal court. Nor will SCOTUS weigh in on the decision of the state.

Federal standing rules are not clear cut. A disputed decision was made by the Ninth Circuit and it should not surprise us too much that they wish to settle that dispute.


December 11th, 2012

I guess I’m just a bit worried by the fact that both cases are involving standing, and that in the Windsor case ther is even a question as to if Windsor herself has standing. My fear, I suppose is that the standing issue will be denied and both cases rejected. I’m not sure how that would affect the general outcome for Marriage equality. I also don’t quite get the outcome if it is denied, where does that leave both cases if they are? I really am trying to figure this out, like everyone else, and am not trying to be contrary.

Timothy Kincaid

December 11th, 2012

Those are good questions and I’m not sure anyone knows for certain.

However, as best I understand it, as the proponents were intervenors in the Prop 8 case at Federal court level, that isn’t in question. So Judge Walker’s ruling would not be threatened by a standing challenge. What would be challenged would be the Ninth Circuit Court of Appeals decision, which actually limited the ruling.

Thus, if no standing was allowed in that case, then there was no appeal at the Ninth Circuit level and the SCOTUS has no jurisdiction by which to even look at the case. The prevailing legal decision would be that of Judge Walker.

This would mean either that marriage is immediately legal in California, or that it is legal in the two counties in which it was challenged. (Some suggest that it would be limited to the plaintiffs, but that seems based in fear rather than in law).

If standing was appropriate, then SCOTUS can and will look at the merits of the Ninth Circuit decision, and maybe even that of Judge Walker.

Timothy Kincaid

December 11th, 2012

In other words,

If the plaintiffs are found not to have standing, we win immediately. But only in California.

If the plaintiffs did have standing, then the SCOTUS will consider whether states can ban gay marriage. Their results could be:

A) yes states can and California did so

B) yes states can, but not in the way that California did it

C) no states cannot ban gay marriage

D) states can in no way discriminate against gay people any more than they can by race (or some lesser comparison, say gender which allows some but not all discrimination)


December 11th, 2012

Thank you for clearing this up. The whole mess has dragged along for so long and bounced around so much all over the place that it’s hard to keep it all straight!

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