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Prop 8 trial: FAQ on standing in the Prop 8 case

Prop 8 trial

By Adam Bink

One of the most common e-mails we get and I see in the comments here at P8TT about the case is about standing, what it is, and how the timeline will work after the hearing on September 6th. AFER has published a helpful layperson’s FAQ on standing in the case. Excerpt:

What’s “standing”?

You can think of “standing” as being like “qualifying.” If someone has “standing” to appeal a decision, that means they are “qualified” to appeal.

A party can only have standing if they have been injured in some way that is both real and specific. (The legal terms are “concrete and particularized” and “actual or imminent.”)

AFER’s plaintiffs clearly have standing. They have been denied marriage licenses by the State of California.

Why do AFER’s plaintiffs have standing but not the Proponents?

Each party must establish standing for themselves. Unlike the Governor and Attorney General, Proponents are not government officials. California law does not allow them to enforce or defend Proposition 8. Therefore, it is impossible for Proponents to establish standing.

Proponents have not been harmed by the decision invalidating Proposition 8. In fact, in finding Proposition 8 unconstitutional, Judge Vaughn Walker wrote, “Proponents … failed to articulate even one specific harm they may suffer.”

The text of Proposition 8 could have given the Proponents the right to defend it in court. But the Proponents chose not to include such language.

Why has the Ninth Circuit asked the California Supreme Court to get involved?

The proponents of Proposition 8 are putting forth an unusual argument in an attempt to establish standing. They claim that, as the official proponents, California law affords them a “particularized interest” in defending the validity of Proposition 8.

Whether or not they have such a “particularized interest” may depend in part on interpretation of California law. The Ninth Circuit is a federal, not state, court; so they have asked the California Supreme Court for guidance.

Has this ever happened before?

Yes. In the 1997 case of Arizonans for Official English v. Arizona, the United States Supreme Court unanimously expressed “grave doubts” about whether the ballot initiative proponents have standing. However, the Court did not definitively resolve the issue.

How and when will the California Supreme Court rule?

The Court will answer either “yes” or “no” within 90 days of oral arguments.

What if the California Supreme Court answers “yes”? Do the Proponents have standing?

Not necessarily. In Arizonans, the Supreme Court of the United States did not definitely resolve the question of whether ballot initiative proponents have standing.

The California Supreme Court may rule that the Proponents have an interest in defending their initiative, but then the Ninth Circuit may find that such an interest still isn’t enough to establish standing under the United States Constitution.

However, if the California Supreme Court answers “yes,” the Ninth Circuit may conclude that the Proponents have standing and then rule on the constitutionality of Proposition 8.

The Ninth Circuit’s eventual ruling could be limited to California, or it could have further-reaching implications. It’s difficult to predict exactly how broad the Ninth Circuit’s ruling will be, or when it will come.

No matter what the Ninth Circuit decides, their ruling is likely to be challenged in the Supreme Court of the United States. The U.S. Supreme Court would not be required to take the case, so the Ninth Circuit’s ruling could be the final say.

It’s hard to predict exactly what effect a U.S. Supreme Court ruling would have because it could range anywhere from full federal marriage equality to something far narrower or simply a ruling on standing.

What if the California Supreme Court Court answers “no”?

If that happens, then the appeal would likely be dismissed. Marriage equality would then return to California in short order.

Is it better for us if they do have standing, or if they don’t have standing?

We believe that either outcome will lead to a victory for our plaintiffs.

For those whose eyes glaze over on this stuff, the two notable pieces I would pull out:

1) The California Supreme Court must rule within 90 days of oral argument. That is a hard and fast rule. By my math, that means November 29th December 6th. The ball is then handed back off to the 9th Circuit to issue its ruling regarding (a) standing and (b) merits (constitutionality of Prop 8, e.g., whether they agree with Judge Walker’s decision or not). There is no set timeline for when the 9th Circuit would issue its decision, but since they put this case on an expedited time frame, observers of the court tell me it is reasonable to expect they will move fairly quickly.  That could be anywhere from a few weeks to a few months, but it’s not expected they would delay issuing a decision longer than 5-6 months at the outside.

2) With regard to this answer above:

Marriage equality would then return to California in short order.

It depends on whether there is a stay issued. The 9th Circuit could stay its own decision or the proponents could ask the Supreme Court to stay the decision to give the proponents an opportunity to ask the Supreme Court to review the decision.


  • 1. Alan_Eckert  |  August 29, 2011 at 3:50 pm

    Nice summary. Will help answer a lot of questions to newcomers.

  • 2. Adam Bink  |  August 29, 2011 at 5:07 pm


  • 3. Bob  |  August 29, 2011 at 3:51 pm

    "Another world is not only possible, she is on her way. On a quiet day I can hear her breathe" quote from a native feminist Arundhati Roy,,,,,,,

  • 4. Shannon  |  August 29, 2011 at 4:11 pm

    Not sure how you calculated your 90 days…. isn't the CA Supreme Court hearing on standing scheduled for Sept 6? 90 days from that would be around Dec. 6. Today's hearing was a federal hearing related to the video tape release.

  • 5. Adam Bink  |  August 29, 2011 at 5:08 pm

    It is scheduled for September 6th, my mistake is that I am always terrible at staring at calendars and counting days. Thank you.

  • 6. RWG  |  August 30, 2011 at 2:41 pm

    Try this. I find it very handy in my work.

  • 7. Ann S.  |  August 29, 2011 at 4:21 pm


  • 8. FlexSF  |  August 29, 2011 at 5:08 pm

    Isn't there federal precedent set for the issue of standing besides the Arizona case? During these legal exchanges there was talk of a former California AG who refused to defend a voter initiative that put the housing rights of African Americans in the cross hairs. Who defended that initiative? Does it relate to P v. B?

  • 9. Ann S.  |  August 29, 2011 at 5:14 pm

    Flex, the case you mention would have addressed standing under California law. The question of standing under California law is separate from (although related to) the question of standing under federal law.

  • 10. Donald  |  August 29, 2011 at 5:34 pm

    Isn't one of the requirements for getting a stay that you will likely prevail on appeal? Also, since the SCt is in recess, doesn't Justice Kennedy decide any question going to the SCt?

  • 11. Jim  |  August 30, 2011 at 3:50 am

    The likelihood of prevailing on appeal is not as big a concern as the turmoil that would result if the losing party prevails on appeal. So, the ruling to knock down prop. 8 was stayed not because of the likelihood that the opposition would prevail, but because it would wreak havoc with people's lives and the government if it did prevail.

  • 12. James Sweet  |  August 30, 2011 at 5:59 am

    Right, exactly. You don't have to be "likely" to win, as long as the possibility you might win isn't completely out of the question. If it would also be difficult to "undo" the ruling, then typically a stay is granted.

    This one is a little bit fishy because usually there has to be irreparable harm shown, and well.. yeah. But I suppose since the proponents are alleging some sort of mystical harm, and a large component of the ruling which is being appealed is the observation that this harm is bogus… The stay does make some sense — from a purely judicial perspective that is; it's entirely nonsensical that loving families are still being denied recognition and equal rights.

  • 13. Sagesse  |  August 29, 2011 at 5:51 pm

    Editorial from the Washington Post

    The House defends discrimination

  • 14. Ronnie  |  August 29, 2011 at 6:39 pm

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  • 16. Steven  |  August 29, 2011 at 9:12 pm

    They have till December 1st to hand down a decision on the standing issue.. December 4th is a Sunday and they only release decisions on Mondays and Thursdays unless its hoilday like veteran Day and Thanksgiving..

  • 17. Alan_Eckert  |  August 30, 2011 at 8:51 am

    Isn't it Dec 5? Court is this Tuesday. 90 days = 12 weeks and 6 days, so the decision is due by a Monday. According to Steven, they release decisions on Mondays and Thursdays (assuming he is correct). Due date is Dec. 5, not Dec 4 as some have speculated.

  • 18. dwpiper  |  August 29, 2011 at 9:25 pm

    I'm still not clear on why the 9th Circuit felt the need to certify the question to the CA Supreme Court before ruling whether the proponents had Article III standing to appeal. As I understand it, one of the three requirements for Article III standing is that there be an actual, or impending, "concrete and particularized injury". How could the CA Supreme Court somehow finding that proponents were authorized under California law to defend the interests of the state establish the existence of some actual or impending. concrete and particularized injury? (Obviously IANAL…)

  • 19. Str8Guy  |  August 30, 2011 at 4:31 am

    Because this case is about whether the people can exercise the initiative power granted them under the state constitution to overrule their state supreme court when they feel the decision is wrong or unjust. Thus, federal standing depends on the California Supreme Court's interpretation (as the highest court on California State Law).

  • 20. dwpiper  |  August 30, 2011 at 6:45 am

    Um… The CA Supreme Court has *already* ruled that Prop 8 was a valid exercise of the initiative power, when they found that it was an amendment to the state Constitution rather than a revision.

    That isn't the question certified to the CA Supreme Court, nor would that have granted them Article III standing in Federal courts.

  • 21. dwpiper  |  August 30, 2011 at 8:01 am

    It occurs to me this morning that the question the 9th Circuit certified to the CA Supreme Court, in simplest terms, is "Does California law permit the initiative proponents to act as agents of the State when the duly elected officers of the State decline to do so?" and therefore that an affirmative ruling by the CA Supremes would mean the proponents would have the standing of the state itself to appeal – thereby eliminating any need for the proponents to demonstrate any concrete and particularized injury to themselves.

    If my reasoning is correct, then logically the 9th Circuit will be guided by the CA Supreme Court's answer – if the CA Supremes answer in the affirmative, the 9th will grant the proponents standing, the appeal will proceed, and the 9th will rule on the merits. If the CA Supremes say "No", then the 9th will deny standing, and the proponents will then appeal the standing issue either to the 9th en banc (who may or may not agree to hear that appeal), or directly to the USSC.

    Have I finally got it straight, or am I still confused? (silly grin here)

  • 22. Str8Guy  |  August 30, 2011 at 5:51 pm

    Heres what you are missing:

    Standing is a component of subject matter jurisdiction. If there is no standing then there is no subject matter jurisdiction, and the 9th Circuit will have to tell the court below to dismiss the case for want of subject matter jurisdiction.

  • 23. dwpiper  |  August 30, 2011 at 6:10 pm

    Um… I understand standing and subject matter jurisdiction. 🙂

    The case is *already* before the 9th Circuit *itself*, because the proponents are appealing the decision of "the court below" – Judge Walker's decision, in Federal District Court. The issue at hand is whether or not the proponents have standing under Article III of the U.S. Constitution to appeal Walker's decision. It's the 9th Circuit itself that will either dismiss the case because the proponents do not have standing, or rule on the merits if proponents do.

    What I was originally asking is how a matter of California law – as ruled on by the California Supreme Court, as the highest authority on California law – had anything to do with Federal standing under Article III of the U.S. Constitution. However, I believe I've actually managed to answer my own question in a later post, on the thread "CA Supreme Court nominee Goodwin Liu receives strong review from state bar, may hear Prop 8 case".

    Thanks for responding, though! 🙂

  • 24. JonT  |  August 30, 2011 at 6:32 pm

    That's wrong.

    The case is already before the 9th circuit. If they decide that proponents have no standing to appeal, then the appeal will be rejected.

    Walkers ruling will still stand.

  • 25. Str8Guy  |  August 31, 2011 at 5:05 am

    Thats Incorrect.

    A court has no jurisdiction over persons not before the court. Here, the district court issued an injunction barring application of prop 8 entirely. But no class was certified, so this is not a class action. Accordingly, the defendants cannot be enjoined from doing anything against anyone not before the court. Thus, the injunction against enforcement of prop 8 will have to be vacated by the appellate court if the appeal is dismissed for lack of standing.

  • 26. Str8Guy  |  August 31, 2011 at 5:11 am

    As you may also note Judge Reinhart took Olson/Boies to task in the certification order for NOT certifying a class action:

    "Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate."

  • 27. dwpiper  |  August 31, 2011 at 6:49 am

    I understood Reinhart's point to be that had plaintiffs named a broader set of defendants, then there would have been a named defendant who definitely had Article III standing to appeal, and therefore "all of this" – the question about whether proponents have standing and the certifying of a question to the CA Supreme Court – "would have been unnecessary".

    Reinhart also states as a certainty in that document that plaintiffs fully intended the case to ultimately go before the U.S. Supreme Court, which I believe is erroneous. Plaintiffs and their Counsel have been clear and consistent that their ultimate goal was victory for the plaintiffs, at whichever level and whichever court achieved a permanent victory. I believe Reinhart is confusing plaintiffs' determination to take the case as far as necessary in order to achieve victory (i.e., "if we need to"), with an *intention* on plaintiffs' part to not stop until the case was before the USSC.(i.e., "we are going to, as our ultimate goal").

  • 28. dwpiper  |  August 31, 2011 at 8:14 am

    A further thought: while Reinhart may indeed be correct that citing additional defendants would have guaranteed a defendant with standing to appeal, that would not have been in plaintiffs' best interests in pursuing a favorable ruling.

    Reinhart's characterizing it as a failure on the part of "preeminent counsel and the major law firms of which they are a part" strikes me as being exactly *wrong* – what he sees as a failure strikes me as being, in fact, excellent legal strategy.

  • 29. dwpiper  |  August 31, 2011 at 9:00 am


    Above, you wrote: "A court has no jurisdiction over persons not before the court. Here, the district court issued an injunction barring application of prop 8 entirely. But no class was certified, so this is not a class action. Accordingly, the defendants cannot be enjoined from doing anything against anyone not before the court."

    Um. The defendants were before the District Court, therefore the District Court *did* have jurisdiction over the defendants, and the defendants were enjoined from acting because Prop 8 was found to be in violation of the U.S. Constitution and therefore it would be unconstitutional to enforce Prop 8 against *anyone*.

  • 30. Sagesse  |  August 30, 2011 at 4:29 am

    Good recap of yesterday's events.

    California judge plans to rule on whether to unseal Prop 8 videotape

    And another

    Proposition 8 Returns To Court: Judge Mulls Unsealing Videos Of Trial

  • 31. Sagesse  |  August 30, 2011 at 5:02 am

    The last entry from the Scotusblog symposium. No Maggie Gallagher effort (small blessings). If you haven't had a chance, there's some interesting reading. The second link is the full list.

    Reflections on a dialogue: Getting to marriage equality

  • 32. peterplumber  |  August 30, 2011 at 5:32 am

    Here is the best part of that:

    “By channeling the romantic passion that is a part of our human natures into a monogamous, opposite-sex relationship capable of procreation, the institution of marriage serves an unbelievably important societal function, transmitting both life and culture to the next generation.” The assumption of this argument is that laws prohibiting same-sex marriage will cause gays and lesbians to enter into heterosexual marriages and thus “channel” them into “monogamous, opposite-sex relationships.”

    There is no evidence of that and it belies common sense at this point in history.

  • 33. celdd  |  August 30, 2011 at 6:46 am

    The last article is by Erwin Chemerinsky who sums up the discussion. His conclusion:

    " Ultimately, the question for Justice Kennedy, the Court, and society is whether gays and lesbians are entitled to equal dignity and equal treatment under the law. There is only one possible answer to that question."

  • 34. Greg  |  August 30, 2011 at 7:30 am

    Unfortunately, there are two possible answers to that question. The author no doubt meant that only one of the answers is the morally defensible one.

  • 35. James Sweet  |  August 30, 2011 at 5:48 am

    Small objection: While it is true that the 9th Circuit could technically decide the plaintiffs don't have standing even if the California Supreme Court comes back with a "yes", that possibility seems pretty implausible. Why refer it to the California SC in the first place then?

    (Unless the 9th Circuit is like my wife… "Which shirt do you like better, the red one or the purple one?" "Uh, the purple one." "Hmmm. I'm getting the red one.")

    There's a whole lot that could be said about the final question, too, though that might get a little long for a FAQ. If the proponents don't have standing, then marriage equality comes sooner to California; but if the proponents have standing and the Good Guys win at SCOTUS, then marriage equality comes sooner to the entire nation. Another point is that if the proponents are denied standing, that could be a negative factor at the ballot boxes, because many voters will perceive that as a deeply unfair result (i.e., that marriage equality in California was decided on a technicality, and both sides did not get their fair day in court — I'm not saying that, I'm just saying that's how some might perceive it!)

    I sort of feel like in the long run, it is better if standing is granted… but I have trouble with that because it also means so many California families will be have to wait even longer to be recognized and be granted the rights they deserve (well, some fraction of the rights they deserve — full marriage equality is impossible in any state until DOMA is repealed or struck down). I guess it's a lucky thing the courts are deciding for us 🙂

  • 36. John  |  August 30, 2011 at 6:32 am

    I agree with most of your comment. However, if the Prop 8 supporters lose on standing, I don't think they can claim that it was a loss on a technicality. The standing issue goes only to their appeal, not to their status as intervenors in the trial court. There they had a full opportunity to put on a defense and, after a full trial, they lost on the merits. Had they won, they wouldn't have had to appeal in the first place.

    I think that if they lose the appeal – either on standing or on the merits – they will just play the usual tune of "3 men in robes overturned the will of 7 million voters."

    One other point about timing: If the 9th Circuit ultimately rules in our favor on standing, I think it very unlikely that it would stay that ruling, esp. w/ the CA Supreme Court's advisory opinion to back them up. That would mean that marriage equality could return to CA as early as next April, May, or June.

    However, if the 9th Circuit rules that the proponents do have standing and then goes on to hand us a win on the merits, I think they would stay their decision. And depending upon the course of the further appeals, that could mean that there would be no marriage equality in CA for months and possibly a few years. In the worst case, the matter could be stayed while there is first an appeal to the entire 9th Circuit, which is then granted, and then a petition for cert, which is then granted, followed by a SCOTUS ruling. All of that would take us into 2013 or 2014.

  • 37. Alan_Eckert  |  August 30, 2011 at 8:54 am

    But if they lose the standing issue, then they can claim the Governor and the AG took away rights from the people. Keep in mind, though, that it was 1 Governor, 1 Attorney General, and 1 AG turned Governor who decided to not defend the case.

  • 38. Kate  |  August 30, 2011 at 8:58 am

    And one current AG.

  • 39. Alan_Eckert  |  August 30, 2011 at 9:38 am

    I counted her. Harris is the "1 Attorney General"

  • 40. Carol  |  August 30, 2011 at 9:35 am

    And Brown (former AG now governor) and Harris (current AG) were elected by the People after making their intentions not to defend Prop 8 clear during their campaigns. So who can say they are not carrying out the will of the People?

  • 41. James Sweet  |  August 30, 2011 at 12:17 pm


    However, if the Prop 8 supporters lose on standing, I don't think they can claim that it was a loss on a technicality… Had they won, they wouldn't have had to appeal in the first place.

    I agree, but I think many voters will not see it that way. Particularly with the relative lack of mainstream publicity of the Walker trial (it was a major news story, but not an all-over-the-news story by any means). "We never got our day in court!" will sound plausible to many, many Americans, and it will resonate strongly with some subset of them.

    Your ideas about the likelihood of a stay in regards to the standing issue are really interesting… I'm a little skeptical, but I have not thought that much about it. You may well be right!

  • 42. AnonyGrl  |  August 31, 2011 at 12:31 pm

    "We never got our day in court! And since we won't let you release the tapes, you can't prove we did!"


  • 43. Ronnie  |  August 30, 2011 at 6:37 am

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  • 46. Aaron in SF  |  August 30, 2011 at 11:17 am

    I don't know where else to write this. I attended GLBT Night at the Giants game (that's baseball, the one where you hit a ball and run in a rectangle). There were 40-thousand-plus people there. They did the kiss cam and showed same sex couples kissing on the giant screen. And I cried in happiness. I never imaged this would ever happen, let alone us being able to marry. I'm starting to cry again just writing this. 🙂

  • 47. Alan_Eckert  |  August 30, 2011 at 11:21 am

    I heard about this from my friends who went last night. So awesome! I'm going tonight, but a work function (free tickets but nosebleed).

  • 48. dwpiper  |  August 30, 2011 at 11:39 am


  • 49. Sheryl_Carver  |  August 30, 2011 at 11:20 am

    Is the CA Supreme Court hearing on standing open to the public? If so, are any of our P8TT folks going? And where & what time on Sep 6th?

    I have most of the day open until late afternoon, so I'd like to attend if possible. Missed the "Free the Tapes" hearing due to previously scheduled appointments. 🙁

  • 50. Alan_Eckert  |  August 30, 2011 at 11:22 am

    It should be. I'd be there, but I'll be on the road following on Twitter and here (hope my battery can last long enough!)

  • 51. Ann S.  |  August 30, 2011 at 11:27 am

    Kathleen and I are going, and I believe Sheryl (proud Mormon Mom) and Sherry & Ellen (of "Free the Tapes!" sign fame) are planning to be there.

    According to, the hearing will be from 10:00 a.m. to 11:00 a.m. on Tuesday, September 6, 2011, in the Supreme Court Courtroom, Earl Warren Building, 350 McAllister Street, San Francisco.

    See you there, I hope!

  • 52. Sheryl_Carver  |  August 30, 2011 at 11:37 am

    Yea! Thanks, Ann!

    Barring some major unexpected crisis, I'll be there!

  • 53. Sheryl, Mormon Mom  |  August 31, 2011 at 11:50 am

    I'll be there with my son.

  • 54. Donald  |  August 30, 2011 at 3:18 pm

    As I understand it, the hearing will be televised on the public access channel, California Channel. In California, this public access channel is carried on most of the cable networks.

  • 55. 415kathleenk  |  August 30, 2011 at 3:57 pm

    i am going to tape the hearing from CA Channel. Also monitor the great live blogging from P8TT folks- Rick et. al.
    Have fun y'all

  • 56. Prop 8 Trial Tracker &raq&hellip  |  September 6, 2011 at 9:00 am

    […] Foundation for Equal Rights provided a helpful FAQ on what standing is and what’s at stake […]

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