SCOTUS’s Prop 8 ruling will complicate ballot initiative process
On Friday, two days after the U.S. Supreme Court announced its ruling in Hollingsworth v. Perry, marriage equality came back to California. Governor Jerry Brown, who had refused to appeal U.S. District Judge Vaughn Walker’s beautiful 2010 decision that the state’s bar on same-sex marriage was unconstitutional, ordered county clerks to begin issuing licenses to gay and lesbian couples. California Attorney General Kamala Harris performed the first wedding under the new regime, the San Francisco marriage of Kristin Perry and Sandy Stier, whose challenge to California’s ballot-initiative ban on same-sex marriage led to the Supreme Court’s decision last Wednesday. In Los Angeles, Mayor Antonio Villaraigosa married the other plaintiffs in the original case, Paul Katami and Jeff Zarrillo. Opponents of same-sex marriage filed an emergency petition at the U.S. Supreme Court over the weekend, seeking a temporary halt to the weddings, but Justice Anthony Kennedy, who oversees the 9th Circuit, denied it on Sunday. Marriage equality is now officially the law in California.
The means to that end, as you’ve probably heard, were not the equal rights of same-sex couples, at least not as far as the Supreme Court majority was concerned. An unusual five-judge coalition of Chief Justice John Roberts and Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan found that the private proponents of the ballot initiative barring gay marriage, known as Proposition 8, did not have standing to appeal Judge Walker’s 2010 ruling, even though the public officials originally named as defendants by Kristin Perry and her fellow plaintiffs declined to ask for review from the 9th Circuit Court of Appeals. You won’t find any soaring language on equal rights in the Perry opinion. (For that, you have to look to Justice Anthony Kennedy’s companion decision in United States v. Windsor, striking down the federal Defense of Marriage Act.) Hollingsworth v. Perry is instead a technical ruling on one of the Chief Justice’s favorite subjects, standing under Article III of the U.S. Constitution.
And for all the wedding hoopla right now in California, Hollingsworth v. Perry will live on in legal citations not for what it says about the marriage-equality rights of gays and lesbians but for its rejection of the rights of private ballot initiative proponents to appear in court in place of public officials who don’t support their law. I predicted after oral arguments in the case that the justices’ ruling could end up “better remembered for setting precedent on standing, stage agency and ballot initiatives than for civil rights.” I’m sticking with that prediction. Sooner than later, same-sex marriage will be the right of people across America, and for that we can count among those we thank the lawyers who took up the Proposition 8 challenge four years ago, David Boies of Boies, Schiller & Flexner and Theodore Olson of Gibson, Dunn & Crutcher. But this opinion’s holding that private citizens do not have standing to defend the constitutionality of ballot initiatives when state officials refuse to do so is also going to affect whether voters can override their elected officials.
Here’s why. The sponsors of Proposition 8 argued that by dint of their role in getting the initiative approved by voters, they had distinct authority and responsibilities to defend it. They also argued that because the California Supreme Court, acting at the request of the 9th Circuit, expressly held that they are authorized to assert the state’s interest on appeal, they are essentially agents of the state. But the Supreme Court majority said that neither sponsorship of the ballot initiative nor the state high court’s ruling give Prop 8 proponents the “personal and tangible harm” and “direct stake in the outcome” required by Article III.
“Their only interest in having the district court order reversed was to vindicate the constitutional validity of a generally applicable California law,” the majority said. “We have repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing. A litigant … claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large, does not state an Article III case or controversy.”
The court said that states have a right to designate an agent to represent them in federal court, a role typically filled by state AGs but sometimes by other state officers, as in the court’s 1987 ruling in Karcher v. May. But private citizens cannot assume that role, according to the majority, because they do not have an agency relationship with the citizens of the state. “Agency requires more than mere authorization to assert a particular interest,” the court held. “Petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals – or elected at all. No provision provides for their removal.” The majority noted that its holding was presaged by dicta in the 1997 decision in Arizonans for Official English v. Arizona, in which Justice Ginsburg expressed “grave doubts” that the sponsor of a ballot initiative declaring English to be the official language of Arizona had standing to appeal a lower-court finding that the voter-passed law was unconstitutional.
You can see how the majority’s holding in Perry could play out in cases in which state officials, however reluctantly, enforce ballot initiatives directing them to adopt policies they disagree with. As in the Perry and Arizonans cases, plaintiffs affected by the voter-adopted laws can sue in federal court to block their enforcement. If they win – and if state officials then decline to appeal – ballot initiative sponsors are stuck with the adverse ruling of the trial court. The Perry ruling, in other words, gives state officials in certain circumstances what amounts to back-door veto power over ballot initiatives.
The dissent in the Perry case, written by Justice Kennedy, argues that the majority opinion undermines the entire rationale for the ballot initiative process. “The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials,” Kennedy wrote. “Giving the governor and attorney general this de facto veto will erode one of the cornerstones of the state’s governmental structure.” And that de facto veto power is more than theoretical, according to the dissent, which noted that 185 of the 455 voter initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court. The California high court’s determination that Prop 8 proponents have the right to assert an appeal on behalf of the state, the dissent said, should have satisfied any concerns about the standing of the ballot initiative proponents.
In a video interview with Reuters opinion editor James Ledbetter, David Boies said that the court’s holding on standing won’t impede the will of voters because ballot initiative proponents have the power to bring suits to force states to comply with voter-passed laws. (They’d have standing as injured plaintiffs in that circumstance.) “You’ve had this rule forever in terms of standing,” Boies said. “And referendums and initiatives keep going.” But after the video interview, Boies told me that in situations like those the Supreme Court faced in Perry and Arizonans, when state officials are defendants in the lower court and refuse to appeal findings of unconstitutionality, ballot proponents can’t appeal in federal court.
There are ways ballot initiative sponsors can work around the majority’s holding. Voters can, for instance, demand laws requiring state officials to designate a state representative to appeal the invalidation of ballot initiatives they don’t like. Or sponsors of voter initiatives can build provisions into the ballot offerings requiring the state to defend the law. And obviously, if a ballot initiative challenge plays out in state court, Article III standing isn’t an issue at all.
But standing for ballot initiative appeals is sufficiently serious an issue that it has already figured in three Supreme Court cases. The next time you see a citation for Hollingsworth v. Perry, it’s probably going to be in a standing dispute.
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