JURIST Guest Columnist Omar Subat, St. John’s University School of Law, Class of 2015, is the author of the second article in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Subat discusses the US Supreme Court’s decision in Hollingsworth v. Perry holding that the proponents of Proposition 8 did not have Article III standing to appeal in federal court…June 26, 2013 was a day of celebration for gay and lesbian advocates across the state of California and the country. In Hollingsworth v. Perry, the Supreme Court declined to overturn a US District Court’s ruling invalidating California’s Proposition 8, which limited the validity and recognition of marriage in California to strictly opposite-sex couples. However, the court’s ruling did not just invalidate Proposition 8; the court reached its decision not by holding that Proposition 8 itself was unconstitutional, but on the grounds that the initiative proponents did not have the standing necessary to have the court litigate the constitutionality of the initiative.

This holding is troubling as it gives state executives like the governor or attorney general, the power to “veto” and undo valid initiatives passed by a majority of voters by simply refusing to defend the initiatives in court. This power undermines the strength and ultimate purpose of the initiative process, which enacts state laws without the approval of the state’s legislature and executive. California and 25 other states use ballot initiatives to enact laws and the Supreme Court’s holding in Hollingsworth compromises the strength and legitimacy of those laws.

The appellants in Hollingsworth filled a void left by then-governor Schwarzenegger and former California attorney general Jerry Brown after a lesbian couple sued the state executives on the grounds that the new law violated the Constitution. Both officials refused to defend Proposition 8 at trial or appeal the district court’s August 2010 ruling in Perry v. Schwarzenegger that overturned it. The ruling also made the 100-year-old California initiative power much more vulnerable.

Proposition 8 amended Article I, Section 7.5, of the California Constitution to state that “Only marriage between a man and a woman is valid or recognized in California.” On November 4, 2008, Proposition 8 was enacted [PDF] with 52.3% of the vote. Kristin Perry and Sandra Stier sued Schwarzenegger and Brown, alleging that Proposition 8 deprived them of “due process and of equal protection of the laws contrary to the Fourteenth Amendment.” Schwarzenegger and Brown refused to defend Proposition 8 in district court, leaving a giant void in the litigation, as there was no remaining defendant willing to defend Proposition 8 and the state’s interest. The official proponents of Proposition 8, led by State Senator Dennis Hollingsworth attempted to intervene and fill that void and were allowed to stand in the place of the state officials who refused to defend Proposition 8.

After a lengthy trial, Chief Judge Vaughn R. Walker held that Proposition 8 was unconstitutional as it violated the Equal Protection Clause of the Fourteenth Amendment. Proposition 8’s sponsors attempted to appeal the decision, leading the US Court of Appeals for the Ninth Circuit to certify a question to the California Supreme Court asking whether the sponsors of an initiative had the authority to assert the State’s interest. The California Supreme Court concluded that the initiative sponsors could assert California’s interest, at least from a state law concept of standing. On February 7, 2012, the Ninth Circuit in Perry v. Brown held Proposition 8 was unconstitutional by a vote of 2-1. Once again, the initiative proponents appealed.

On June 26, 2013, the Supreme Court rendered a 5-4 decision in Hollingsworth v. Perry that the proponents of Proposition 8 did not have Article III standing to appeal in federal court. Chief Justice Roberts, writing the majority opinion, concluded that Proposition 8’s proponents could not invoke the standing afforded to them by California’s Supreme Court because a “litigant must assert his/her own rights and cannot claim relief through intervention of a third party.” Roberts wrote: “standing in federal court is a question of federal law, not state law.” The Supreme Court did not address the underlying substantive merits of Proposition 8. Justice Kennedy dissented, writing: “The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials…Giving the governor and attorney general this de facto veto will erode one of the cornerstones of the state’s governmental structure.”

Even gay marriage advocates voiced concern for the initiative system. California Lieutenant Governor Gavin Newsom, who as mayor of San Francisco oversaw an administration that married thousands of gay couples in contravention of the Proposition 8 ballot initiative, expressed concern over the court’s holding, stating: “You’d be hard pressed to find someone more enthusiastic about the outcome of the Supreme Court decision. But, I do think that the decision raises legitimate questions that are very problematic in the future.” Charles Moran, an openly gay political consultant and chairman of the California Log Cabin Republicans similarly stated: “This could have long-term impacts on elective politics…Anytime somebody has a statewide ballot initiative I think there’s a new question that has to be asked: Will this pass the smell test of the Attorney General and the Governor.”

To eliminate this “de facto veto,” California should enact a law that would require a ballot measure’s proponents to petition the state’s highest court for a special attorney to be appointed when a state’s elected officials refuse to defend a ballot initiative. With this proposed solution, it will still be the state of California defending the initiative, albeit through a Special Attorney of the state. This mechanism will insure that any law enacted through a ballot initiative will be given a full defense on its merits. And once such a defense is made, the law will still have to endure a constitutionality test on appeal. The only requirement would be that the proponents would have to make a preliminary showing to the state’s highest court that the ballot measure did not violate state or federal law. This preliminary showing is analogous to the requirement that a party seeking a preliminary injunction must make, which is demonstrating a substantial likelihood of success on the merits to a court. This law would insure that state executives would not have a de facto veto as described by Justice Kennedy, allowing them to undo state ballot initiatives.

Omar Subat received his B.A. in political science from the University of California, Santa Barbara and is currently a student at St. John’s University School of Law. Subat currently serves as Symposium and Executive Articles editor for the Journal of Civil Rights and Economic Development.

Suggested citation:Omar Subat, Who Has Standing, JURIST – Student Commentary, September 23, 2014, http://jurist.org/student/2014/09/omar-subat-california-standing.php.