Prop 8 Proponents Have Standing To Defend It In Court

NPR Report

The Full Decision

I think this is the right decision.

I’m in favor of full legal equality for all citizens. I don’t believe that there is a legitimate state interest in restricting marriage rights to heterosexual couples. I believe that all the quasi-sophisticated arguments about the ‘essence’ of marriage exist simply to mask naked homophobia. I believe that the heart of Proposition 8 can be reasonably described as “people who are not members of my religion ought to be compelled, by force of law, to comply with the dictates of my religion.” And, as ever, I am disgusted by the open and repeated lies Proposition 8 proponents spout about “changing the definition of marriage,” as if marriage was always one thing, and as if that one thing has always excluded same-sex couples, neither of which is true.

But even bad ideas … even the worst ideas … deserve a fair day in court. Proposition 8 was voted on and passed by a majority of citizens of California, and though I believe it to be unconstitutional, that’s for a judge to decide. We oughtn’t make an end-run around proving it’s a bad law by disallowing anyone from arguing in court that it’s a good one.

The remedy to speech we dislike is more speech, and I’ve found that the best arguments against Proposition 8 often come from merely letting its proponents speak freely. Let’s hear their best arguments. Let’s hear them loudly, clearly, and in public. It’s only through letting them speak, after all, that we can be certain that their very best arguments are, simply … bad.

Please do not comment unless you accept the basic dignity, equality, and inherent worth of all people. 

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23 Responses to Prop 8 Proponents Have Standing To Defend It In Court

  1. 1
    Susan says:

    I have not read the briefs (don’t have time), and I do not practice either Constitutional or appellate law. (I’m much further down the food chain, trying to help ordinary people solve ordinary problems.) And I firmly believe that all citizens deserve the protections of marriage, regardless of orientation. And more, as a mostly conservative I don’t think it the business of the State to poke its nose into who-all I choose to make such commitments to.

    All that said, I think this is the right decision. Let’s haul all this out in the open and examine it: make your best argument. It’s the only way any decision has the chance of gaining popular support.

  2. 2
    JohnInCA says:

    They had their day in court already. They got to defend Prop 8. They got to have the judiciary decide on the constitutionality of the law, and not just wave it away on procedural grounds.

    And it’s really not like the standing issue was a mystery. That’s the way law in the US has been working since the 20’s or so.

    Or to put it another way… for everyone else, in order to appeal a ruling like this you have to be affected. If you suffer no ill from the ruling, you don’t get to appeal it just because you’re not happy with it. And that bar is what the proponents failed to meet. They could not successfully argue in court that they would be affected at all by Judge Walker’s ruling.

    So… first they got their day in court, and failed to defend the law, then they got their day in court again, and failed to argue that they would be affected by the repeal of the law.

    This isn’t giving the law a fair chance and open dialogue. That already happened. This is the state giving the proponents special rights to do what no one else is allowed to do.

  3. 3
    mythago says:

    But even bad ideas … even the worst ideas … deserve a fair day in court.

    It is exactly this kind of vague, handwavy thinking that leads to radio and television shows refusing to treat any idea at all as beyond the pale. Whenever you see a raving, hateful extremist included on a panel “for balance” or allowed to dominate a conversation because “free speech”, it’s because somebody has bought into the nonsense that merely having an idea gives you the moral entitlement to have it use the same (or more) oxygen than any other idea.

    Your argument is also beside the point. The question was not “does Proposition 8 deserve to waste even more of the judicial system’s time?” The question was “Who has the right to argue on behalf of Proposition 8?” That’s what standing means. You can’t just file a lawsuit on anybody’s behalf just because you feel like it; you have to be the person who actually has an interest at stake.

    I don’t think this was the right decision, though I understand why the ruling went as it did. But it’s not about pretending that a courtroom is exactly synonymous with the intersection of the Marketplace of Ideas and Chattering Class Lane.

  4. 4
    David Schraub says:

    I’m inclined to agree with this, mostly because I’m inclined to take a broad view of standing. While the basic idea of standing doctrine (that a party must have a stake in the conflict to bring suit) is solid, we should be wary of laws or rulings which are rendered, in effect, unchallengeable due to standing bars. And in part, that is because I believe in the democratic function of courts whereby anyone — even those who political parties ignore, even those who can’t afford to donate to reelection campaigns — can come forward and state their case under the law (in part, I also think that systematically speaking, a narrow view of standing will block out more cases I like than ones I dislike. We’re seeing this a little already with the retreat from allowing taxpayer standing in Establishment Clause cases, stemming from Hein v. Freedom from Religious Foundation).

  5. 5
    Charles S says:

    I like this decision, as I agree that someone has to have standing to defend laws passed by ballot measure if the government decides it doesn’t want to.

    Personally, I think American law concerning standing is excessively restrictive, and prefer British and Canadian law which recognizes public interest standing. The US has had bad policy, particularly environmental policy that couldn’t be challenged because the harm done by the bad policy was too general, so no one had standing to challenge it. To me, that seems obscene (“we’re hurting all of you, so none of you can complain!”). This case doesn’t address that and doesn’t fix the problem, but it is still on the right side of the line.

    On the other hand, I kind of wish it had gone the other way, as I don’t have much hope that it will win at the SC, and if it couldn’t be appealed then CA would have gotten marriage equality with this decision.

  6. 6
    mythago says:

    David @3, for me part of the problem is that Prop 8 could have, but didn’t, include a provision regarding standing. Other initiatives in California have done that – explicitly stating that any resident may challenge, etc. – which, whether or not it fulfills a strict legal requirement for standing, at least reflects the drafters’ clear intent not to leave enforcement to the government. And the rest is that the Prop 8 supporters could articulate no harm they would suffer. Even a more generalized harm or a vague connection between Prop 8 and individuals being harmed, I think, would be enough. But “I am offended if gays marry”? That’s not harm, any more than “I am offended if the Department of the Interior allows logging” is enough to support a Sierra Club lawsuit absent claims that their members hike in the forest in question.

  7. 7
    Elusis says:

    I agree with Mythago. The state has an Attorney General to defend the state’s standing. The AG should be empowered to decide when further appeals are a waste of the state’s time and money. Citizens not impacted by the overturning of the law, other than by having angry and hurt feelings about not getting to have their law passed (remember they admitted in Walker’s court that they couldn’t actually articulate *any way* that hetero marriage would be hurt by having same-sex marriages which pretty much makes it plain that their only claim is that they should get to define marriage because, well, they want to), should not. California’s appeals process is a hot mess wholly owned by corporate interests at this point; this ruling only makes that situation worse.

  8. 8
    Sebastian H says:

    I don’t agree with Mythago. The whole point of initiatives is to go around the judgment of the representatives. If the representatives can kill them by just refusing to defend, the check is worthless. If you want to abolish initiatives, fine, but so long as they exist, someone needs to be able to defend them when the state officials won’t.

  9. 9
    Elusis says:

    Sebastian H, the decision to defend/not defend isn’t up to representatives. It’s a decision by the governor and Attorney General, who are by the way duly elected by the people.

  10. 10
    gin-and-whiskey says:

    I think it’s treading dangerous ground if folks begin to characterize an initiative passed by majority vote as “extremist.”

    I like this decision. I hope they lose, but it’s the correct thing to allow them to defend it.

    Admittedly we live in a republic, not a purely representative democracy. But still, it is generally incumbent on our government to do its damndest to actually follow the will of the majority, when it is possible.

    That’s why this case is, from a moral perspective, properly decided. All of the things we’re talking about (the constitution is an excellent example) have no objective reason for being; they’re merely rules that were passed by some sort of vote.

    The non-democratic aspects of a republic are concessions to the function of the government, made only because we can’t run a country this size as a pure democracy. but we would all be well to remember that initiatives are GREAT, insofar as they the closest thing we have to democracy.

  11. 11
    mythago says:

    All of the things we’re talking about (the constitution is an excellent example) have no objective reason for being; they’re merely rules that were passed by some sort of vote.

    Prop 8 is merely a rule that was passed by some sort of a vote.

    This isn’t about whether Prop 8 is a good thing or a bad thing or a popular thing. It’s about a pretty simple legal principle – are you the right person to be making a fuss over this? – and in the case of Prop 8, they’re not.

    If this was an initiative to quantify sewage rates, I doubt the CA Supremes would have looked twice.

  12. 12
    Susan says:

    If this was an initiative to quantify sewage rates, I doubt the CA Supremes would have looked twice.

    Of course not. And you’re probably right about standing if you apply the rules strictly.

    But we cannot pretend that there’s no more at stake here than sewage rates, that this is not a highly politicized issue, and that it does not have to be solved, if at all, through some kind of democratic consensus.

    Take the Defense of Marriage Act. Any properly instructed child can tell you that the law of marriage, divorce, child custody and guardianship, that is, the law of the family, was, along with a lot of other stuff, reserved to the States. It is not Constitutionally correct to allow the federal government to Decree who-all can marry who-all, what the proper grounds for divorce might be, or how the correct split of custody of the children of divorce should be determined. (Horrors! The Federal District Courts are trying to get rid of cases, not stick their noses into every little local thing!)

    This means that DOMA is unconstitutional on its face. I’ve heard a few rather feeble arguments to the contrary, but they are not convincing.

    However, it has not been declared unconstitutional (yet) for political reasons. We really cannot entirely separate the law (which is very academic, in the end) from political realities. It won’t come away clean. However smart we think we are, we do not and cannot govern this nation purely by black-letter law out of some book, even if the “book” is the US Constitution.

    Everyone, even the proponents of Prop 8, knows perfectly well how this entire debate is going to come out eventually. The only question is how this is going to happen, and how long it is going to take.

  13. 13
    Robert says:

    It’s about a pretty simple legal principle – are you the right person to be making a fuss over this? – and in the case of Prop 8, they’re not.

    I am not a lawyer, as I prefer inflicting suffering on imaginary creatures in fantasy roleplaying games rather than on real creatures here on Earth. But it seems to me that the principle semi-articulated above is fundamentally true; a law that nobody has standing to take to court is either infinitely trivial or undemocratically oppressive. Who *would* have standing to defend Prop 8?

    If the answer is “the state’s functionaries” – well, doesn’t that then depend on a presumption that state functionaries will do their jobs and defend legitimately-passed laws regardless of their personal beliefs, or the politics, or any consideration other than “was this law passed in a legitimate fashion”?

    And if they don’t, it does seem to me – again from my non-lawyer horseback position – that the standing issue needs to have more flexibility in it. Like others, I don’t agree with Proposition 8 but I can see there being a lot of laws that I do agree with, passed by whatever process, that a state government might decline to defend in court. And that would really piss me off. So while I’m not pissed off that Proposition 8 wasn’t getting defended (since I don’t like it), I’m willing to be vicariously pissed off on the grounds of fair and equal play.

    Also, as Amp did not quite come out and say, if a law gets defeated in the courts because nobody who can defend it will, and nobody who will is allowed to – then the law’s original proponents are going to be energized and mobilized and filled with righteous indignation. Righteous indignation is a pretty powerful force. Pragmatically, it is better to give the Prop 8 people their say in court so that after they lose (which I gather is relatively inevitable) they at least can’t claim to be oppressed by the system and/or blocked from participation. And note – and I’m looking at you, Mythago – that legal arcana that mean that they weren’t actually oppressed or blocked are irrelevant to the question of whether they FEEL oppressed and blocked. Their political movement will move forward (or not) based on how they feel, not on how people who disagree with them think they ought rationally to feel. (Shades of the OWS discussion.)

  14. 14
    Sebastian H says:

    “This isn’t about whether Prop 8 is a good thing or a bad thing or a popular thing. It’s about a pretty simple legal principle – are you the right person to be making a fuss over this? – and in the case of Prop 8, they’re not. ”

    A legislature is presumptively the right person to defend laws that it passes if the administration refuses to defend them, especially if they represent a power struggle between the legislature and the administration. It doesn’t strike me as crazy to suggest that similarly the backers of an initiative that the state officials refuse to defend might be the right people to have standing in a power struggle between a duly passed initiative and an administration that doesn’t want to defend it.

  15. 15
    Susan says:

    Here’s the argument.

    Let us suppose that the elected officials of California, by and large, for whatever reason, are at this time not all that responsive to the will of the people. (Well, that doesn’t take a LOT of supposing, does it.) Let us say further that an enormously popular initiative, oh, limiting government officials’ compensation, shall we say, passes, is challenged, and for obvious reasons the folks in Sacramento refuse to defend it.

    This would be OK?

    No, says this court, the people behind the initiative have the right to take up the ball if the government drops it.

    Now this asks some deeper questions about the initiative process, questions that probably need to be asked and answered, but for now, we do have this system. To make it work there must be someone who can defend the proposition under question.

    Anyway, that’s the argument. I find it fairly persuasive, given the givens. So did the court.

    xxx

    The entire initiative process assumes that the legislature either isn’t doing its job or is not responsive to the people, or both. Both propositions seem to be usually true in California. Why is this? Is there a better way to fix this than to just ignore them and pass laws ourselves? Is this somehow a self-fulfilling prophecy? These are deep questions beyond the scope of this particular thread.

  16. 16
    Ampersand says:

    I agree with Susan and others.

    “This isn’t about whether Prop 8 is a good thing or a bad thing or a popular thing. It’s about a pretty simple legal principle – are you the right person to be making a fuss over this? – and in the case of Prop 8, they’re not. ”

    I actually think that being the people who wrote the law and got the initiative passed does give them a legitimate claim to having been harmed by the law being found unconstitutional. The work put into passing an initiative like (sigh) Prop 8 is not trivial; it essentially represents the full-time labor and passion of the proponents over multiple years. Saying that these people therefore have “a particularized interest in the initiative‘s validity,” as CA law requires for standing, doesn’t create a slippery slope to saying that anyone can claim standing for anything.

    The Court claims that “California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure…” If that’s true, then this decision doesn’t actually expand the standing rules substantively.

    I also agree with the Court’s argument when they write:

    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.

  17. 17
    Myca says:

    Yeah, I’m with Amp and Susan.

    Pace Mythago, I’m not making an “all views deserve equal time” claim. Rather, I’m saying that, though I believe this to be a particularly horrible and bigoted view (propounded by horrible bigots), that’s not enough to overcome my belief that, since it was a legitimate initiative legitimately passed by California voters, if it’s invalidated, it ought to be invalidated on constitutional grounds, not on lack-of standing-to-appeal grounds.

    Broadly, I think that someone ought to be able to defend an initiative in court, for the reasons Susan listed and for others, and I think that the initiative’s official backers are as good as any.

    That having been said, the initiative system is a nightmare that’s destroying my state, and I’d love to see it done away with … but if we’re going to have it, we ought to take it seriously.

    —Myca

  18. 18
    mythago says:

    I prefer inflicting suffering on imaginary creatures in fantasy roleplaying games rather than on real creatures here on Earth

    Oh, Robert, you and your either/or thinking. Both/and, my friend. Both/and.

    This strikes me as a textbook case of the truism “hard cases make bad law”. Yes, we all would rather see Prop 8 go down in flames on the basis of being a vile law. That doesn’t mean that handwaving a basic legal principle like standing is anything other than, well, handwaving. If this were over a liberal initiative, I do imagine that our resident conservatives would be grumping about “judicial activism”.

    Because here’s a few questions I’m still not seeing anyone answer:

    1) Why on earth didn’t the language of Prop 8 include a provision on standing? (At least one other initiative that was on the ballot at the same time as Prop 8 did.)

    2) If California voters want any citizen to have standing to support an initiative that passed the popular vote, why don’t they say so? (There are already laws governing how an initiative gets passed; it would be trivial to insert a section saying “Unless otherwise stated in the initiative, any citizen resident of California has standing in a case regarding an initiative.”)

    3) If an initiative is blatantly, obviously, even-my-dog-can-see-this bad, or even unconstitutional, should we expect the attorney general to spend time and taxpayer money appealing it forever and ever until she runs out of courtrooms? (“So what this initiative says that Christianity is illegal in California? Will of the people, baby. We’re taking this one all the way up to SCOTUS.”)

    #2 is, by the way, the standard argument of someone favoring ‘judicial restraint’: It’s not the job of the Court to invent a law or write in a result we want to happen. (You may recognize this as the principle on which the Federalist Society was supposedly founded.) Sometimes this ends up with a result that we consider unjust, and that’s often when people push to change the law so that doesn’t happen again.

    Whenever I hear opposing counsel talk about a “technicality” or “legal arcana” I smile, because that means they messed up big time and they’re trying to pretend their error is insignificant. Standing is not “legal arcana”. It is the question of whether somebody has the right to petition the Court for relief. What’s your dog in this fight? If you don’t have one, where do you get off demanding things change? “I don’t like it” is not by itself enough, nor should it be. The Prop 8 supporters could not demonstrate any actual harm they suffered.

    By the way, in the US, standing has traditionally been used to swat down laws that liberals favor. I won’t be waiting underwater for the conservative legal types to declare that it was judicial activism and an expansion of standing for the Court to allow the Prop 8 challenge.

  19. 19
    Grace Annam says:

    1) Why on earth didn’t the language of Prop 8 include a provision on standing? (At least one other initiative that was on the ballot at the same time as Prop 8 did.)

    I got this one, folks. Let me help you out, there, Mythago. It’s because, apart from being bigots, they were either lousy lawyers or failed to hire competent legal counsel.

    Happy to help. Carry on.

    Grace

  20. 20
    Hershele Ostropoler says:

    Robert at 13:

    So while I’m not pissed off that Proposition 8 wasn’t getting defended (since I don’t like it), I’m willing to be vicariously pissed off on the grounds of fair and equal play.

    Possibly not a good example; IANAL, but I can see how there are people on either side of fair pay. The Ledbetter law was created in response to a SCOTUS case that pit someone who had been unfairly paid against a party that felt it benefitted from doing to.

    Rerailing, I can see the proponents of Prop 8 having an interest not in the sense that marriage will harm them but that their efforts being for naught will. On what theory do the Governor and AG have standing to defend it?

  21. 21
    mythago says:

    Grace @19: I will totally buy that theory, having watched part of the original Prop 8 trial in Judge Walker’s courtroom. I just don’t see “Our lawyers are fucking morons” as an inroad to standing.

    Herschele @20: If it’s a law, then the governor and AG have standing to act to protect the law against legal challenges, or allow intervenors to do so instead.

  22. 22
    Susan says:

    1) Why on earth didn’t the language of Prop 8 include a provision on standing? (At least one other initiative that was on the ballot at the same time as Prop 8 did.)

    One of the (many) big flaws of the initiative process is that the law is voted up or down as written; no one has the power to amend it or re-think it in the process (as legislatures do). So a lot of very confused law gets enacted, for the courts to sort out later. This is not the most outstanding example of this. (Hardly!)

    I just don’t see “Our lawyers are fucking morons” as an inroad to standing.

    The initiative did not say that the backers did NOT have standing. (That would be a case of “our lawyers are fucking morons.”) The initiative was silent on the issue, so someone had to decide, up or down. The question of standing can be a tricky one, and I think the court handled it correctly in this case.

    By the way, in the US, standing has traditionally been used to swat down laws that liberals favor.

    Not always. I was peripherally involved, back in the day, in a civil rights case where the (mostly white) residents of a big housing complex sued the owners for discrimination against blacks. The discrimination was obvious, so the only question was standing. This case went all the way to SCOTUS, which ruled that the existing residents did have standing under the Civil Rights Act. (The owners thereupon settled.)

    Anyway, as a general matter standing, like jurisdiction, is fundamental to the way our court system works. The requirement of standing is an attempt to cut down on frivolous cases. Because a wrong has occurred (allegedly) does not by itself give ME the right to bring a lawsuit. I have to show that I am personally injured by the alleged wrong.

  23. 23
    mythago says:

    Susan: which suggests that it didn’t occur to any of Prop 8’s drafters that there might be a legal challenge, and that perhaps (in California! Who knew!) that the governor and AG might not be totally on their side, so they’d better cover all angles – as the drafters of another initiative did.

    Of course standing isn’t always against liberal causes, but that’s where the major jurisprudence comes from – Sierra Club v. Morton and similar cases.