JURIST Columnist Vikram Amar, writing the inaugural edition of the column authored by the faculty of the University of California, Davis School of Law, says that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans…

Detractors likely see last week’s ruling striking down California’s ban on same-sex marriage, Proposition 8, as a result-oriented decision calculated to reinstate same-sex marriage in the Golden State and at the same time discourage Supreme Court review on account of the California-specific reasoning underlying the opinion.

It is worth noting that Judge Reinhardt, the opinion’s author, would also have been accused of activism had he written a broader ruling that called into question other state bans on same-sex marriage as well. Still, Reinhardt’s effort does suffer from significant logical and doctrinal problems. He attempted to wrap himself in the cloak of Romer v. Evans, the famous 1996 Supreme Court ruling in which Justice Kennedy wrote for the majority to invalidate a Colorado initiative that withdrew, across the board, protection from discrimination on the basis of sexual orientation for all persons of gay or bisexual orientation while leaving in place such anti-discrimination protection for people of heterosexual orientation. Reinhardt also relied on two features of Proposition 8 that he said doomed it under Romer and other cases. First, California repealed an existing right to same-sex marriage; California did not simply choose not to recognize one in the first place (as in other states). Second, California’s repeal of the marriage label was irrationally narrow, insofar as it left intact all the tangible benefits of same-sex marriage for gay couples.

The big problem is that neither of these features of Proposition 8 brings the case within the scope of Romer. In Romer, nothing seemed to turn on the fact that the Colorado law in question, Amendment 2, had taken the form of a repeal. Imagine there were no anti-discrimination laws relating to sexual orientation in Colorado at all. Colorado then creates such laws in something it calls “Amendment 2(a),” but provides therein that “none of these newly created rights concerning sexual orientation discrimination shall be enjoyed by persons who are of gay orientation or lifestyle.” I have no doubt the Court would have struck this down just as it did the law in Romer. In fact, Justice Kennedy in Romer actually used “withheld” instead of “repealed” in one place, to describe Amendment 2. So Romer is not about impermissible repeal, but rather about unfair exclusion of a group from a benefit.

Part of what made the initiative in Romer so unfair, the Court said, was its sweeping breadth. So the second argument Judge Reinhardt makes for striking down Proposition 8 — its narrowness — not only finds no support in Romer, this argument is actually undermined by the reasoning of Romer.

There are other, related, problems with Judge Reinhardt’s opinion. His finding that Proposition 8 cannot rationally be thought to reflect California’s desire to proceed cautiously with major social change because the initiative was styled as a “permanent” cessation of, rather than a moratorium on, same-sex marriage is quite unconvincing. A cessation is always no more than an indefinite break, insofar as the people of California remain free to repeal any state law in the future, even Proposition 8 itself. Indeed, can anyone see last week’s decision coming out differently if Proposition 8 had been written to require all state officials to implement “an indefinite moratorium, until further action from the people, on all same-sex marriages, so that Californians may safeguard their vision of the institution of marriage in light of the way marriage has developed throughout history and across the nation”?

The analytic moves Reinhardt makes create problematic incentives for states. If a state chooses to experiment by recognizing same-sex marriage (or any other right not required by the federal Constitution), it can now reasonably worry that repeal will be difficult. If a state confers most of the tangible benefits of marriage on same-sex couples, it can now reasonably worry that its failure to extend the marriage label will be struck down as irrational.

Defenders of Judge Reinhardt might suggest that he was in a bind. Proposition 8, they may say, was a measure driven by hostility towards gays, but direct evidence of such animus on the part of decision makers (in this case voters) is always hard to adduce. And, they would add, the Supreme Court has itself (in cases like Romer) struck down anti-gay measures using inadequately explained and/or logically unconvincing reasoning. Constitutional law, they might observe, is always choppy in a period of transition, during which courts are working their way through what they think is the constitutionally right answer but are restrained for prudential reasons from articulating at the outset a full-throated explanation of the constitutional principles involved. Given pragmatic constraints, Reinhardt defenders would suggest, the judge could not easily have held that equal protection principles should make us skeptical of bans on same-sex marriage everywhere, and that such bans cannot survive the intermediate or strict scrutiny they warrant. Such an intellectually honest opinion would have forced the Supreme Court to decide a major issue that the Court could think will benefit from percolation in the states and the lower courts for a while. On this view, Judge Reinhardt, by ruling on California-specific grounds, reached the constitutionally just result while doing the Supreme Court (and Anthony Kennedy in particular) a favor by giving the justices a basis on which they can stay out of this tangle, for now.

However, even if someone were to agree with the premises of Judge Reinhardt’s defenders (and I take no position on that here), I think his opinion is still open to question because there was a better path to the same endpoint. Had the Ninth Circuit held that the official proponents of Proposition 8 lacked Article III standing to defend the measure in federal court, Proposition 8 would die in California just as it does if Reinhardt’s approach is allowed to stand. It would die because Governor Jerry Brown and Attorney General Kamala Harris (the only persons with proper standing in federal court to defend the measure) have made clear they will not defend it. A class action on behalf of all same-sex couples in California could be brought (as Proposition 8 challengers probably should have done in the first place), and then (after Brown and Harris decline to defend) a default judgment in favor of this class of plaintiffs and a corresponding statewide injunction against enforcing Proposition 8 would ensue.

This result would have been better for same-sex marriage proponents than Reinhardt’s approach because even though the same result invalidating Proposition 8 would be reached: (1) California would join the ranks of the same-sex marriage states in the important national tally by virtue of decisions of elected California officials (Attorney General and Governor) and the voters who elected them, rather than by unelected federal judges (especially the notoriously liberal Reinhardt); (2); the likelihood of Supreme Court review would be much lower than it is even under Reinhardt’s California-specific approach; (3) Judge Reinhardt could appear to be displaying judicial modesty and obedience by taking to heart the admonitions by the Supreme Court reversing a Ninth Circuit case he authored 15 years ago concerning the lack of initiative proponent standing in federal court; and (4) there would be no doctrinal externalities to other settings arising from Judge Reinhardt’s curious reasoning.

The only remaining question is whether the Ninth Circuit’s (or the Supreme Court’s, for that matter) hands are tied with respect to initiative sponsor standing because of the California Supreme Court opinion last November indicating that proponents have standing to assert the interests of the state in state court. Simply put, the California court’s ruling does not resolve the standing question in federal court. Certainly if California courts were to hold that every voter has standing to assert the interests of the state electorate to defend an initiative when statewide elected officials decline, such a determination would and could not create citizen standing in federal court.

Instead, as the Supreme Court has made clear in cases discussing jus tertii (or third-party) standing, when someone is permitted standing in order to assert the individual or collective rights of another individual or group, the person seeking standing ideally would have a special relationship with the right holder(s) to satisfy the Court’s prudential concerns that there will be adequate representation. With regard to elected officials representing the interests of the voters, tradition and the fact that the officials are elected or appointed create that relationship of accountability and generate good representation. But with respect to initiative proponents who were not known or picked by the voters when the electorate adopted an initiative, there is no process (and no real discussion by the California Supreme Court) that explains why the proponents are accountable to and thus can be representatives for the voters. In a 1997 opinion, the Supreme Court expressed “grave doubts” about initiative proponent standing and observed:

[Elected] [s]tate legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. [But initiative proponents] are not elected representatives, and we are aware of no Arizona law appointing initiative proponents as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as [constitutionally] qualified defenders of the measures they advocated.

The California Supreme court has told us that California law authorizes proponents to represent the state in state court. Is that enough? I would argue not. Note that the Supreme Court pointed out at least two problems with proponent standing in Arizona — lack of state law authorization, and also the fact that proponents are not “elected representatives” or “appoint[ed] agents.” The California court ruling may address the former, but does precious little to blunt the latter.

Why should lack of election or formal appointment as a state agent matter? Because Proposition 8 proponents were never actually chosen by the people, nor designated by any of California’s elected representatives, to speak for the state’s electorate. Of course, the measure that the proponents proposed was adopted, but that does not mean that the electorate decided — or intended — that these particular proponents ought to speak or act for the voters in any representative capacity.

In short, initiative proponents not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

In fashioning a workable balance between the competing concerns presented by initiative-proponent standing, the federal courts should recognize the possibility of proponent standing, but only when the conferral of power to defend on proponents is clearly provided for in state law. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, proponent standing seem inadequate to confer notice on the voters since, as the Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court’s jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to spell out who within the proponent organization is entitled to make key litigation decisions and concessions, and also what the relative power of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative proponents.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision last November, perhaps voters in California should, going forward, know and factor in that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court. But because such state-law clarity was not in place when Proposition 8 itself was passed (and I note here that it was passed by a slim margin), I will not be surprised if the Supreme Court concludes that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.

Denying them federal standing may have been (and may still be) the prudent thing to do.

Vikram Amar is the Associate Dean of Academic Affairs and a Professor of Law at the University of California, Davis School of Law. He writes, teaches and consults in the public law fields, especially constitutional law, civil procedure and remedies. He is a co-author of Constitutional Law: Cases and Materials, and he is a co-author on a number of volumes of the Wright & Miller Federal Practice and Procedure Treatise.

Suggested citation: Vikram Amar, Revisiting Standing: Proposition 8 in the Ninth Circuit, JURIST – Forum, Feb. 16, 2012, http://jurist.org/forum/2012/02/vikram-amar-marriage-standing.php.