Saturday, January 22, 2011

Article on Federalism Challenges to the Defense of Marriage Act

“The way is long and the shrine is far”

The Defense of Marriage Act and Uncategorical Federalism is an article I have written that is forthcoming this March in volume 19 of the William and Mary Bill of Rights Journal (2011).  It addresses Tenth Amendment/federalism challenges to Section 3 of the so-called Defense of Marriage Act, which defines “marriage” for most federal law purposes as only a union of one man and one woman.  It is fairly technical, but anyone interested can check it out on the Social Sciences Research Network here.

Tuesday, January 4, 2011

Prop 8 Case Returns to California Supreme Court

“Why leave me standing here? / Let me know the way.”

The U.S. Court of Appeals for the Ninth Circuit today put the attempted appeal in the Proposition 8 case on hold so they could certify a question of California law to the Supreme Court of California (SCOCA).  If that court says that the official proponents who sponsored Prop 8 do not have all-purpose authority to defend the measure in any litigation in any court, that would almost certainly spell the end of the appeal effort after the case gets back to the Ninth Circuit.

The issue, recall, is whether the Proponents are legally entitled to appeal Chief Judge Walker’s decision holding Prop 8 unconstitutional.  To satisfy the “standing” doctrine that governs in federal courts, they must have a particularized, concrete, non-abstract injury resulting from the invalidation of Prop 8, not just an ideological objection to his decision or a firm conviction that he was legally mistaken.  Because that is probably impossible for them to show, they are trying to argue that they should be able to take an appeal based on the injury to the voters of California acting as legislators through the initiative process.

That’s where state law comes in.  The Supreme Court of the United States (SCOTUS) has previously doubted that initiative proponents suffer a sufficient injury to have standing when measures they sponsored are invalidated, but it has suggested (without definitively ruling) that legislatures have the requisite injury when their laws are invalidated provided state law authorizes them to defend their laws in court.  The proponents want to extend that rule from legislatures to initiative proponents.  So they want to argue that California law authorizes them to represent the state’s interests in defending Prop 8.

And California courts have, generally without extensive analysis, allowed ballot proponents to defend their initiatives – in state court, thus necessarily subject to the supervision of California state judges.  That is not a general-purpose vesting of proponents with authority to represent all the states’ voters in any court.  Rather, California courts, not bound by federal standing rules, have made individual decisions to allow proponents to defend laws in California’s own state courts.

But individual legislators have not had standing to represent the entire legislature without legal authorization to that end.  When legislatures have passed resolutions allowing representatives to defend measures in court, that has sometimes been allowed to satisfy standing rules.  The proponents, however, cannot point to an authorization by the voters of California to represent our collective interests in any courts including federal courts.  Indeed, although some initiatives have contained clauses that have authorized their proponents to defend the measures, Prop 8’s proponents did not choose to include any such language.

Accordingly, the California Supreme Court should choose to answer the certified question about the authority California law does or does not give to the Proponents (as it is a matter of their discretion whether they choose to), and then after briefing and oral arguments, hand down a decision along the lines sketched  above.  Based on the earlier Prop 8 challenge before SCOCA and other past certified questions, I would think this could happen within six months at the very most, though the Court tends to take upwards of a year (to close to three) to decide referred questions.  Then, the Ninth Circuit should hold that the proponents do not have standing; dismiss their attempted appeal; and lift their stay of Judge Walker’s order directing the Governor and the Attorney General of California to allow same-sex couples to marry again.  If the appeal effort is resolved on these narrow, somewhat technical grounds, there would then be a decent chance that SCOTUS would not bother to review the Ninth Circuit’s decision and equal freedom to marry would be restored in California.

[edited to reflect typical decision times for California Supreme Court to answer referred questions]