The Supreme Court’s decision in Perry v. Hollingsworth, where it declined to rule on the substance of the case before it by determining that the non-government intervenors, lacked standing to pursue either appeal has raised some interesting discussions. As a result of that decision, everything that has happened in that case since Judge Vaughn Walker issued his opinion has essentially become a legal nullity and, within a month or so, same-sex marriage will once again be legal in California despite the fact that, in 2008, a majority of Californians voted to make it illegal. One of the main reasons this will happen, some have argued, is that the Supreme Court ruled that once the elected officials of California decided not to defend the law, there was no way to test the constitutionality of Proposition 8 in the appellate courts. This is an issue that has, interestingly, raised concerns both on the left and the right.
Ed Morrissey, for example, put it this way:
The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage. The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there. However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome. That to me is a more dangerous outcome than a precedent-setting decision on standing.
His co-blogger Allahpundit expanded on that argument:
Am I right in understanding that the Court’s now essentially held that if the people of a state pass a popular referendum on whatever subject and then that referendum is challenged and struck down at the trial-court level, they have no right to appeal? They get one bite at the apple and then, if the executive decides he doesn’t like the referendum enough to choose to appeal it himself, there’s nothing a single member of the public can do to ask an appellate court to reconsider the lower court’s decision — even though many millions of voters voted directly to enact the law? That seems … odd.
There were similar arguments on the left, like this from Scott Lemieux:
[L]et me briefly say that while I’m happy Prop 8 will be struck down standing is the worst grounds for a good outcome: it’s a pernicious argument. The courts shouldn’t be foreclosed from hearing appeals just because the current government declines to defend a law.
Kevin Drum, meanwhile, sees a problem with the fact that the Court’s decision gives elected officials an easy way to effectively nullify a referendum passed by a public that decided to bypass the legislative process:
In California, it’s routine for the people to pass initiatives that neither the governor nor the legislature supports. In fact, that was the whole point of the initiative process when it was created. In cases like these, of course the governor and legislature are going to decline to defend the law in court. With today’s decision, the Supreme Court is basically gutting the people’s right to pass initiatives that elected officials don’t like and then to defend them all the way to the highest court in the land.
To me, this has neither the flavor of justice nor of democratic governance, regardless of whether I like the outcome.
Admittedly, the Court’s decision that the Hollingsworth parties, who had originally been involved in the lawsuit as “Intervenors” because they were among the parties involved in getting Proposition 8 on the ballot in the first place, did not have standing to defend the law on appeal does raise some problematic issues. For example, it’s worth noting that when the case first reached the 9th Circuit Court of Appeals, that Court sent the case to the California Supreme Court for a ruling on the question of whether or not parties such as these have authority under California law to step in to defend the law when the Executive Branch declines to do so. California’s Supreme Court ruled that the did and, when that answer got back to the 9th Circuit that Court accepted the answer as sufficient to grant standing under Federal law so that it could rule on the merits of the case. The Supreme Court, on the other hand, rejected that argument and, most notably said this:
Petitioners argue that the California Constitution and its election laws give them a “`unique,’ `special,’ and `distinct’ role in the initiative process — one `involving both authority and responsibilities that differ from other supporters of the measure.’” Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d, at 1006, 1017-1018, 1030). True enough — but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to [*8] the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec. Code Ann. § 342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§ 9607-9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. § 9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§ 9064, 9065, 9067, 9069.
But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021. Petitioners have no role — special or otherwise — in the enforcement of Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not “possess any official authority . . . to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California. Defenders of Wildlife, supra, at 560-561.
Article III standing “is not to be placed in the hands of `concerned bystanders,’ who will use it simply as a `vehicle for the vindication of value interests.’” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” post at 4 (KENNEDY J., dissenting), that is not a particularized interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504 U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65 (“Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated.”); Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).
(…)
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
Perhaps if California law had contained a provision that essentially “deputized” the proponents of an initiative as a party authorized to defend it in Court in the event of a challenge that state law officials declined to defend in Court, the outcome of the case would have been different. In such a situation, it could be argued that the proponents were essentially acting as agents of the state, and the people of the state, in seeking to defend the Constitutionality of a duly enacted initiative. It’s hard to say if that would have made much of a difference, though. Federal standing law is incredibly technical and, quite often, used by Courts to dispose of cases that they’d rather not decide on the merits at a given point in time. Even without a “deputization” provision, though, it strikes me that there ought to be some method for some party to step in to defend a popularly passed initiative when it is challenged in Court and those in power in government decide to defend it. Even if Governor Brown and Attorney General Harris are correct in their opinion that the law was unconstitutional, and I believe that they are, and conceding the fact that Governor’s like President’s do have the discretion to decline to defend a law in Court if they believe it to be unconstitutional, something that has happened frequently in the past, there seems to me to be something not quite right with the idea of a law that a majority of the voters supported at the polls should die because nobody is willing to defend it. To make an analogy that is admittedly somewhat inapt, Courts would never let a criminal defendant go unrepresented, so I’m not sure why the same shouldn’t apply, somehow, to duly enacted laws.
The interesting thing about this question, of course, is that Hollingsworth wasn’t the only decision handed down Wednesday where there was a standing issue. There were similar issues in United States v. Windsor, the case challenging the Defense of Marriage Act, due to the Obama Administration’s decision in February 2011 to no longer defend DOMA in Court. When that happened, the House of Representatives stepped in and funded a defense on its own. The difference is that, this time around, the Court decided that the Congressional defense group via an office of the House called the Bipartisan Legal Advisory Group. Now, it’s worth noting that there had been situations in the past where Congress had stepped into defend a law when the Executive Branch declined to do so but, in those cases, the defense was endorsed by both Chambers of Congress. In the case of DOMA, only the House endorsed the defense. Nonetheless, the Court found that the BLAG did have standing to defend DOMA on appeal.
Here’s how Justice Kennedy addressed the issue in his opinion:
In the case now before the Court the attorneys for BLAG present a substantial argument for the constitutionality of § 3 of DOMA. BLAG’s sharp adversarial presentation of the issues satisfies the prudential concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree. Were this Court to hold that prudential rules require it to dismiss the case, and, in consequence, that the Court of Appeals erred in failing to dismiss it as well, extensive litigation would ensue. The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. For instance, the opinion of the Court of Appeals for the First Circuit, addressing the validity of DOMA in a case involving regulations of the Department of Health and Human Services, likely would be vacated with instructions to dismiss, its ruling and guidance also then erased. See Massachusetts v. United States Dept. of Health and Human Servs., 682 F. 3d 1 (CA1 2012). Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent. That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. True, the very extent of DOMA’s mandate means that at some point a case likely would arise without the prudential concerns raised here; but the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved. In these unusual and urgent circumstances, the very term “prudential” counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction. For these reasons, the prudential and Article III requirements are met here; and, as a consequence, the Court need not decide whether BLAG would have standing to challenge the District Court’s ruling and its affirmance in the Court of Appeals on BLAG’s own authority.
The Court’s conclusion that this petition may be heard on the merits does not imply that no difficulties would ensue if this were a common practice in ordinary cases. The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma. On the one hand, as noted, the Government’s agreement with Windsor raises questions about the propriety of entertaining a suit in which it seeks affirmance of an order invalidating a federal law and ordering the United States to pay money. On the other hand, if the Executive’s agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court’s primary role in determining the constitutionality of a law that has inflicted real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President’s. This would undermine the clear dictate of the separation-of-powers principle that “when an Act of Congress is alleged to conflict with the Constitution, `[i]t is emphatically the province and duty of the judicial department to say what the law is.’” Zivotofsky v. Clinton, 566 U. S. ___,___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Similarly, with respect to the legislative power, when Congress has passed a statute and a President has signed it, it poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment[*11] solely on its own initiative and without any determination from the Court.
Linda Hirshman thinks the Court is contradicting itself in these two holdings:
Maybe Hollingsworth was an honest commitment to the niceties of federal standing. But denying the Prop 8 advocates standing while extending it to the Congressional Republicans in Windsor is a little awkward. The policy argument the Court articulated to grant standing in Windsor—that the Court did not want the president to usurp their role of deciding constitutional cases by refusing to defend a law and destroying standing—applies with equal force to the California government in Hollingsworth. The Court’s role in deciding the constitutionality of state laws is as great, and almost as old, as its role in federal cases. Yet the Court just turned over to the governor of California the ability to destroy its jurisdiction to decide the constitutionality of Prop 8.
The incoherence of the two standing opinions, taken together, makes it more likely Hollingsworth was simply a decision to duck for a little while longer: There are a bunch of other direct challenges in the pipeline that don’t involve a standing problem
The obvious difference between Hollingsworth and Windsor, of course, is that one involves state law while the other involves Federal Law. It’s also worth noting that, while the Court has previously permitted Congress to step in to defend a statute on appeal when the Executive has declined to do so (see e.g., INS v. Chadha 462 U.S. 919 (1983)), it has never allowed a private party to step in to defend a state (or Federal) law, as Chief Justice Roberts notes in his opinion in Hollingsworth. Given the sometimes labyrinthine nature of Federal standing law, this is likely enough to withstand any real legal scrutiny and a sufficient answer to charges of logical inconsistency. At the same time, though, the different way that the almost identical standing issue was handled in two different decisions handed down on the same day is, as Hishman notes, awkward, and likely an indication that the Court was reluctant to issue the kind of groundbreaking opinion on same-sex marriage that ruling on the merits would have likely required them to at this particular time. That’s judicial restraint in action, but it only delays for another time the day on which the Court will have to handle this issue again. It may not come for several more years, but there will soon be another case before the Court that tackles the constitutionality of state-law bans on same-sex marriage directly. That one won’t have standing issues, and the Court will be required to rule on the merits.
