May 14, 2013
By Scottie Thomaston
Greg Stohr, writing in Bloomberg News, takes a look at the looming decision in Hollingsworth v. Perry, the Prop 8 case. The Justices are widely expected to issue the decision in late June, possibly in the last days of the Term. The piece examines the issue of the Prop 8 proponents’ legal standing to appeal the case, an issue that was briefed and argued in the case and is a threshold issue the Justices will need to decide before reaching the merits. The issue of Article III standing is important in the case because none of the government defendants appealed the district court’s decision striking down the initiative, and that left only the ballot initiative proponents to appeal. The government defendants enforced the law but didn’t defend it in district court, although as Marty Lederman pointed out at SCOTUSBlog, most of the government defendants filed answers to the plaintiffs’ complaint, and no one opposed the proponents’ motion to intervene in district court to defend the amendment’s constitutionality:
The California Attorney General, Jerry Brown (now the Governor), answered the complaint by admitting that Proposition 8 violates the Fourteenth Amendment. The other named defendants, including then-Governor Arnold Schwarzenegger, did not admit the allegations, but also joined Attorney General Brown in refusing to defend the new law. Despite this nondefense, the defendants continued to enforce the law by denying marriage licenses to same-sex couples, including the plaintiffs.
In the meantime, the five proponents of Proposition 8 and ProtectMarriage.com filed a motion to intervene as of right in the Perry proceeding, pursuant to Federal Rule of Civil Procedure 24(a), on the ground that the named defendants would not adequately defend the measure’s constitutionality. No party opposed the motion, and the district court granted the proponents’ motion to intervene, ruling that “as official proponents, they have a significant protect[a]ble interest in defending Prop 8’s constitutionality.” The proponents thereafter controlled the defense of Proposition 8 in the district court.
After the proponents appealed the Ninth Circuit asked the California Supreme Court if ballot initiative proponents either have a particularized interest or can step into the state’s shoes to defend their interests in a passed ballot initiative. The California Supreme Court said that proponents can defend the state’s interest, and the Ninth Circuit held that their decision led to the conclusion that the Prop 8 proponents would have standing to appeal based on the state’s interest in defending Prop 8.
One of the plaintiffs’ lawyers told Stohr that they would be happy if, in the end, the Supreme Court ruled that the proponents lacked standing to appeal the case, because it would allow marriage equality in the state:
“A win on standing would be a victory that would establish marriage equality and wipe out Prop 8,” said Theodore Boutrous, a Los Angeles lawyer with Gibson Dunn & Crutcher. “We would be very happy with that.”
But Stohr talked to others who weren’t so sure that the ruling would be that simple or final:
A standing ruling might mean “a quick death for Prop 8,” said Vikram Amar, a constitutional law professor at the University of California Davis School of Law. “But it’s also quite possible — maybe more likely — that it will take some time before we know which couples, beyond the two couples who sued, would be able to get their licenses.”
Some constitutional law professors, including Marty Lederman of Georgetown University Law Center in Washington, say Walker lacked power to issue a statewide ruling.
“District court judges generally do not have the power to issue injunctions that protect persons other than the parties before them,” Lederman wrote in a post on Scotusblog, which tracks the court.
Amar has written previously that he believes that when ProtectMarriage, the ballot initiative proponents, took on the responsibility of passing the initiative and it did pass, voters didn’t knowingly appoint the group to represent the state (since, typically, the Attorney General and the Governor represent California’s interests in court.) His own view is that since ballot proponents aren’t appointed by voters to represent the state, they lack standing. He has also written (as he did in the series in the link above) that he believes both the Ninth Circuit and Judge Walker’s decisions should be wiped out.
Lederman’s argument is somewhat different: he has argued that Judge Walker didn’t have the authority to issue an injunction that applied to all couples or officials, and should have only enjoined officials from denying the actual Prop 8 plaintiffs a marriage license. He believes that even if the injunction is construed to only apply to the two couples in the case, state officials and lawyers have several options to extend the ruling to the whole state: state officials could choose to view the injunction as uniform and make sure it applies to all same-sex couples in California, or, alternatively, deny a marriage license to a same-sex couple and then refuse to defend or appeal a case when it is challenged, or deny a marriage license to a same-sex couple and when it’s challenged in court, file notices of appeal and make sure the case is adequately defended.
But as Stohr’s piece points out, the scope of Judge Walker’s injunction may not be addressed by the Court in the first place (the parties had disputed that there would be authority for the Court to change the scope of the injunction if it lacks standing to hear the case at all.)
Along with those options, one issue that Stohr doesn’t address is the possibility that the Court may “DIG” the case: dismiss the petition for certiorari as improvidently granted. That would mean the case would revert back to its status before the Court granted the petition, meaning the Ninth Circuit’s narrow ruling would remain in place, but it would only apply to California, since the facts of the case aren’t likely to be repeated elsewhere in the Ninth Circuit. The Court doesn’t DIG cases often, but it does at times. (This term they’ve already dismissed one case as improvidently granted.) There are limitations though, because of the process: it takes four votes to hear a case, so in theory, in all cases where only four Justices vote to grant cert, the other five could dismiss the petition as improvidently granted. Because of this, the Court usually won’t DIG a case unless at least one Justice who originally voted to grant cert has changed their mind. There was speculation, based on the oral argument, that it’s possible the four conservatives voted to hear (and would reverse) the case. If that’s true then it doesn’t appear likely any one of those four would change their mind.
Whatever will happen in June, there are several options that would eliminate Prop 8 even in the event of a Court ruling on Article III standing alone. And as others have pointed out, there are several more options for the Court to strike down Prop 8 if it chooses to issue a ruling on the merits. There’s only one decision that would definitively keep Prop 8 in place, and that would be for five Justices to uphold it. It’s objectively difficult to come up with five votes on the current Court for a decision upholding Prop 8. And this month, the three states that have passed marriage laws may have made that even less likely.