By Courtney Joslin, a professor at UC Davis School of Law
Last week, the California Supreme Court again waded into the issue of marriage for same-sex couples. The California Supreme Court issued an advisory opinion explaining the rights under California state law of the official initiative Proponents to defend the measure in court when state officials decline to do so. What is the impact of the court’s opinion on the pending Perry v. Brown litigation and where does the case go from here?
In May 2009, two same-sex couples sued various California officials in federal district court challenging California’s same-sex marriage ban – Proposition 8 – under the U.S. Constitution. All of the state officials refused to defend Prop 8 (although the Attorney General was the only named defendant to argue affirmatively that Prop 8 is unconstitutional). When the official Proponents of Prop 8 sought to intervene in the litigation, no party opposed their intervention, and the court granted the motion. The Proponents were the only parties who defended Prop 8 in the district court.
In August 2010, federal district judge Vaughn Walker ruled that Prop 8 violated the U.S. Constitution. The Prop 8 proponents appealed this decision; no state official sought further review. Commentators and the Ninth Circuit itself questioned whether the Proponents had standing to appeal the decision in the absence of the state defendants. Although the U.S. Supreme Court has not definitively resolved the issue, there is language in prior Supreme Court decisions suggesting that the standing of ballot initiative proponents may turn on their rights under state law. Accordingly, after oral argument, the Ninth Circuit certified the following question to the California Supreme Court: “[w]hether under [California law], the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative validity[.]”
On November 17, 2011, the California Supreme Court unanimously answered the question in the affirmative. This conclusion, the court explained, was necessary to protect the integrity of the initiative process. A contrary result, the court said, would permit government officials indirectly to “veto or invalidate an initiative measure that has been approved by the voters.”
The California Supreme Court’s conclusion that the proponents would be permitted to defend the measure in state court was not surprising to anyone who had been following the case. What was at least somewhat surprising, however, was the fact that the court not only purported to explain the rights of ballot initiative sponsors as a matter of state law, but that it went further and offered its assessment of whether they had standing as a matter of federal law. In its analysis, the California Supreme Court assumed that Supreme Court case law addressing the standing of legislative leaders is equally applicable to initiative sponsors; that is, that initiative sponsors have Article III standing if state law authorizes them to represent or act on behalf of the state’s interest.
The Ninth Circuit has given some indications that it agrees with this conception of federal standing doctrine. The framing of the certified question itself seemed to be premised on such an understanding. That said, as the California Supreme Court itself recognized, the standing issue has not yet been definitively resolved. Even if the current Ninth Circuit panel holds that the proponents have Article III standing, an en banc panel of the court or the U.S. Supreme Court may disagree. As my colleagues Vikram Amar and Alan Brownstein argue, there may be important reasons to apply different, more stringent standing requirements to initiative sponsors than are applied to legislative leaders. Of note, unlike legislative leaders, initiative sponsors are not directly accountable to the voters in any meaningful way.
The road from here
In terms of the road ahead, numerous media reports have suggested that the case will ultimately be resolved by the U.S. Supreme Court. Whether that occurs, however, turns in part on the outcome in the Ninth Circuit.
If the Proposition is upheld by the Ninth Circuit (which seems unlikely at the 3-judge panel level), the probability of Supreme Court review is lower. And even though the probability of review increases if the Ninth Circuit rules in favor of the plaintiffs, the likelihood depends on the scope of the ruling. The Supreme Court is more likely to accept review of a sweeping decision holding that all laws or constitutional provisions excluding same-sex couples from the right to marry violate principles of due process or equal protection. This is true because many other states’ laws and/or constitutional provisions would be vulnerable under such reasoning.
It is possible, however, for the Ninth Circuit to rule in favor of the plaintiffs by issuing a narrower, California-specific decision. Such a decision would be less likely to trigger Supreme Court review because its impact would be more limited. The LGBT legal organizations urged the court to decide the case on this more narrow ground in their prior briefing to the Ninth Circuit. Their brief explained that although the majority of states have statutory and constitutional marriage bans, Prop 8 is unique. Unlike any other state marriage ban, Prop 8 stripped lesbian and gay couples of an existing right to marry by “creating an express ‘exception’” to the constitutional right to equal protection. In addition, while Prop 8 eliminated the right to marry for same-sex couples, it left intact a status by which same-sex couples can access all of the state-conferred marital rights and obligations. Accordingly, the brief concludes, like the constitutional initiative struck down in Romer v. Evans, Prop 8 “constitute[s] a facial violation of equal protection.”
During last year’s oral argument, it appeared that at least some members of the current Ninth Circuit panel were receptive to this argument. For example, Judge N. Randy Smith (who many consider to be the most conservative member of the panel) pointed out that both before and after Prop 8, California extended comprehensive legal protections to same-sex couples, including all of the parentage and child-related protections extended to heterosexual married spouses. In light of this legal treatment, Judge Smith noted, it was difficult to see how Proposition 8 furthered any interest related to child rearing or well-being.
It will be interesting to watch the next series of twists and turns that this case takes.