Arkansas Ban on Adoption by Gay (and Other Unmarried) Cohabitors Struck Down

The man’s got his eye on me/And that’s an invasion of my privacy

The Supreme Court of Arkansas unanimously held today that the state’s ban on adoption or foster parenting by persons who are cohabiting with a sexual partner outside marriage violated the state constitution.  In Arkansas Department of Human Services v. Cole (opinion here), the court concluded that the law violated the state constitutional right of privacy.  This decision is a great development for the children of Arkansas who need parents or foster parents.

The current ban on adoption or foster parenting by unmarried sexual cohabitants was written in sex-neutral terms, so that it applied to people who cohabit with a sexual partner of a different sex or one of the same sex.  It had been adopted by the voters through an initiative in 2008 in the wake of a 2006 Arkansas Supreme Court decision striking down a ban on foster parenting by any individual if a lesbigay person was a member of his or her household.

In Cole, the Arkansas Supreme court did not rely on the transparent discriminatory intent behind the initiative ban.  Rather, the court’s decision built upon a 2002 Arkansas Supreme court decision in Jegley v. Picado.  Jegley had held that the Arkansas Constitution contained an implicit right of privacy, and that a state law criminalizing oral or anal sex by same-sex couples violated that right as applied to private, consensual, noncommercial sex.  Today, the Cole court reasoned that the parenting ban burdened the right to engage in sexual intimacy, forcing people to “the pernicious choice” between being eligible to adopt or to foster parent a child, or being able to exercise their fundamental right of privacy.

Because the right of privacy, including the right to engage in sexual intimacy, is fundamental under the Arkansas Constitution, laws burdening this right are examined by Arkansas courts under a nondeferential, “strict” or “heightened scrutiny” standard.  The law burdening the right must be  narrowly tailored or the least restrictive way of furthering some compelling (not just legitimate) state interest.  Although the court agreed with the defendants that protecting the best interests of children is a compelling interest,  Because some people cohabiting in a sexual relationship with someone outside marriage were conceded to have the ability to be good parents, and because the initiative enacted an across-the-board, categorical ban on adoption and fostering, when the individualized assessment process for adoptions and foster parent placements was adequate to protect children’s interests, the Arkansas Supreme Court held that the ban was not the least restrictive means of protecting children.

Before Arkansas changed its nickname to “the Natural State” (‘sex is natural, sex is good’?), it was the “Land of Opportunity.”  With the decision in Cole, it is once again a land of greater opportunity for children to be raised by loving, competent parents.

[edited to add labels]

Liberally Distorting Constitutional Law and Presidential Independence

No one part can be more powerful than any other is./ Each controls the other you see, and that's what we call checks and balances.

UCLA Law Professor Adam Winkler has published a piece in the Huffington Post (here) arguing that President Obama’s decision not to defend Section 3 of the Defense of Marriage Act (DOMA) in two cases filed in federal courts in New York and Connecticut “should be condemned.”   In making his arguments, Winkler, generally regarded as a “liberal” law professor, distorts presidential positions and constitutional equal protection law and so unfairly criticizes the President (of whom I have been far from a knee-jerk defender).

DOMA Section 3 defines marriage as a union of one man and one woman for most federal law purposes.  As I recently explained (here) on CruzLines, President Obama and Attorney General Holder have concluded that under the Constitution’s guarantees of equal protection of the laws, government laws or actions that discriminate on the basis of sexual orientation should be subjected to heightened scrutiny (making it harder to defend their constitutionality), not the extremely deferential “rational basis review.”  They further concluded that Section 3 fails that kind of careful analysis insofar as it applies to deny federal benefits or obligations to legally married same-sex couples.  Accordingly, the President determined that the Department of Justice (DOJ) will not defend Section 3 in courts where precedent does not reject the proposition that heightened scrutiny is the right standard for assessing the constitutionality of sexual orientation discrimination.   The Second Circuit in the federal appellate court system has not decided what the right standard is, so the Obama administration will not be defending Section 3 in cases there, such as the New York and Connecticut ones.

Winkler argues against Obama’s decision on the ground that it breaks new ground – according to him, “For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws” – and “sets a terrible precedent” that could lead to conservative or right-wing Presidents (my characterization – he invokes the implausible notion of “a President Palin”) refusing to defend laws that liberals presumably like (again, my characterization – he offers “the landmark healthcare reform law” as his illustration).

Yet it is simply wrong to claim that Presidents have maintained that they have an inexorable duty to defend “all federal laws.” As a DOJ letter (here – thanks to Orin Kerr for posting a link on the Volokh Conspiracy) to Sen. Hatch detailed, there have been frequent occasions when the President has decided not to defend a federal law that he has concluded is unconstitutional.

So the real question is, not should we “condemn” the President for choosing not to defend a federal law, but is Section 3 of DOMA the sort of law that it is proper for him to choose not to defend (in certain circumstances)?  Winkler thinks not, seemingly because he thinks Obama’s view of equal protection conflicts with the Supreme Court’s view.  To be fair one statement in Winkler’s piece more modestly suggests not an actual conflict but only that the President’s and the Attorney General’s “interpretation of the Constitution [has] little support in Supreme Court doctrine.”  But elsewhere he clearly says the Court has rejected the view Obama and Holder have taken.  This is a mistake, but it is not the only mistake that Winkler makes.

According to Winkler, “twice the Supreme Court has rejected [the] argument” that “discrimination against gay people warrants heightened scrutiny.”   He does not name the occasions, but presumably he is referring to the Supreme Court’s 1996 decision in Romer v. Evans, where it held that Colorado’s anti-lesbigay Amendment 2 to its state constitution violated the Constitution’s Equal Protection Clause, and (perhaps) the Court’s 2003 decision in Lawrence v. Texas, where it held that Texas’s law criminalizing oral and anal sex between persons of the same-sex violated the Due Process Clause.  In both cases the people challenging the discriminatory laws did argue that heightened equal protection scrutiny was proper for sexual orientation discrimination.

But in neither case did the Court “reject” the argument, and so Winkler is wrong to suggest that rational-basis-review-only “[i]s the law of the land.”   Romer held that Colorado’s law could not pass “even” the easiest test, rational basis review.  The Court therefore did not need to decide whether a more stringent test is warranted. Nor did Romer expressly consider and reject heightened scrutiny, something the Court has done in 1985 with respect to discrimination on the basis of mental retardation in Cleburne v. Cleburne Living Center.  And in Lawrence, the Court did not even take a position on the equal protection argument at all (other than to characterize it as “tenable”), instead ruling on the ground that the criminal “sodomy” law deprived people of liberty without due process of law.   The appropriate level of scrutiny for courts to use in deciding equal protection questions where government discriminates on the basis of sexual orientation is thus an open question as far as our highest court is concerned.

But it is not a question regarding whose answer we have no clues.  Supreme Court precedent does provide various factors that may be considered in determining whether a particular form of discrimination merits heightened scrutiny, factors such as a history of discrimination against a group or the lack of connection between a trait and a person’s ability to contribute to society.  These are precisely the factors on which Holder’s and Obama’s analysis expressly relied.   (The vast weight of constitutional scholarship also supports the conclusion that heightened scrutiny is proper for sexual orientation discrimination.)  So, contrary to Winkler’s distorted picture, these leaders have indeed been faithful to the Supreme Court’s decisions, and their view has much more than "little support" in current doctrine.  They were applying constitutional law, not simply refusing to defend a statute because on policy grounds Obama didn’t “agree with” Section 3 of DOMA, in Winkler’s uncharitable and misleading characterization.

Moreover, Winkler further leads readers astray in suggesting that what Obama has done with respect to DOMA provides a precedent for it taking merely “a presidential announcement to repeal … vital and important federal laws.”  President Obama’s announcement expressly affirms that he is continuing to enforce Section 3 of DOMA.  He is not simply not making legal arguments in defense of a discriminatory law that he has quite reasonably concluded is unconstitutional.  This is in no way a violation of his constitutional obligation to “take Care that the Laws be faithfully executed."  The Constitution is the supreme law of the land, not whatever prejudiced measures a particular Congress might happen to enact.

Finally, even if the Supreme Court had held that sexual orientation discrimination is constitutional if it survives rational basis review, and/or even if Obama had determined to have the executive branch stop enforcing Section 3 of DOMA, it is far from obvious that right-thinking people should “condemn” Obama for his actions, or that we should think this a horrible unbalancing of powers in our system of federal government.  Winkler appears to place greatest faith in the Supreme Court, but as I and most of my constitutional law students see it every year, that degree of faith is misplaced. Dred Scott, Plessy v. Ferguson, Korematsu v. United States, and Bowers v. Hardwick should give pause.  While I do not necessarily approve of everything that President Lincoln said or did, I believe we would do well to take to heart the words of Thomas Jefferson that Lincoln quoted in defending his views about the (il)legitimacy of Dred Scott:

"You seem … to consider the judges as the ultimate arbiters of all constitutional questions – a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges see as honest as other men, and not more so. … The constitution … has more wisely made all the departments co-equal and co-sovereign within themselves."

[edited 20121207 to add italics to case name]

gay.americablog.com live chat on DOMA here 3:30 p.m. PST 2/23

Obama DOJ Drops Federal Definition Section of DOMA

"Love won't take no for an answer."

The Attorney General has announced the Justice Department's conclusion that Section 3 of the so-called Defense of Marriage Act (DOMA) is unconstitutional, so they will not defend it, but they will still enforce it.  Well, actually, they concluded this as applied to same-sex couples who have legally married, so I suppose they could still defend it to refuse federal recognition to a lawfully entered plural marriage from some country that allows them.  But this is huge news!

The U.S. Court of Appeals for the Second Circuit had not decided how deferentially or skeptically laws that discriminate on the basis of sexual orientation should be reviewed by courts under the constitutional guarantee of equal protection of the laws (the "level of scrutiny" issue).  This, Attorney General Holder has explained in a letter to Congress (here and here for the AG's statement about the decision), led to a review of this question.  Having decided that something more than minimal "rational basis" review is required, the Administration has concluded that DOMA Section 3 cannot meet heightened scrutiny.  Interestingly, the letter relies on the Don't Ask, Don't Tell Repeal Act in support of its conclusion that sexual orientation discrimination warrants heightened equal protection scrutiny.

The letter does not explain why it stops short of calling for the type of strict scrutiny used for racial discrimination, instead applying the same kind of intermediate scrutiny used in sex discrimination cases; perhaps the answer is that the more deferential intermediate scrutiny (which they call "heightened") is sufficient to invalidate Section 3 as applied to legally married same-sex couples, so they did not have to decide whether the most skeptical standard (strict scrutiny) is required.

However, while the Administration has concluded that it will not defend DOMA Section 3 against heightened scrutiny, it will continue to enforce the measure while it is still on the books, "unless and until Congress repeals Section 3 or the judicial branch [read, the Supreme Court of the U.S.?] renders a definitive verdict against the law’s constitutionality."

[Edited to include sentence about Don't Ask, Don't Tell Repeal Act.]
[Edited to include link to Attorney General Holder's statement, not just the letter to Congress]

California Supreme Court to Hear Prop 8 Case, Again

"You waltz right in the door/Just like you done before"

The California Supreme Court has agreed to answer the question that the Ninth Circuit requested it answer for Perry v. Schwarzenegger, the federal lawsuit seeking to hold Proposition 8 unconstitutional.  The California high court's decision, although not a certainty, was widely expected by legal observers.  The accelerated schedule the court has set (with briefing to start by mid-March and be completed by early May, and oral argument likely in September, to be followed by decision 90 days later) puts it in line with most of the referred questions the court has decided in the shortest time in recent years.  So, although almost a year for this referral process (which started January 4, 2011) is a long time for those same-sex couples waiting to see whether and when California will again allow them to get legally married in California, it is much better than almost three years, which the court took in one referred case about five years ago.  And starting next month we can expect the parties to brief the question of the authority to defend Prop 8 in litigation that Prop 8's proponents do or do not enjoy under California law, which will be a very important input to the Ninth Circuit's analysis of whether the proponents have standing to pursue an appeal when the case returns to federal court.  (I have previously blogged about that question here and here.)

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.

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]

-DBC

Cooley and the Prop 8 Appeal

“Hey neighbor let me give you some advice”

Williams Institute fellow Craig Konnoth has written a “Viewpoint” opinion piece in the Sacramento Bee here, where he argues that the outcome of the very close race between Steve Cooley and Kamala Harris “is important for same-sex marriage rights nationally.”  Cooley has said that he would defend Proposition 8 if he were Attorney General; Harris has said she would not due to its unconstitutionality, in her view and the view of federal district court Chief Judge Vaughn Walker.   Although Konnoth’s piece is generally on point, it may raise some alarms that it should not.

Konnoth writes that, “[g]iven the deadlines involved, it is unclear whether Cooley will have a chance to intervene at either the appellate or Supreme Court levels. However, if the courts allow him to intervene in the case, it would solve the standing problem [created by Jerry Brown’s and Arnold Schwarzenegger’s refusal to defend Prop 8], and the Supreme Court could face the issue head-on.”  I believe this fear to be misplaced.

The deadline has already passed for California to file an appeal in the Prop 8 litigation.  Although the United States Court of Appeals for the Ninth Circuit has the power to waive almost every one of the procedural rules that govern its hearing of appeals, the rules themselves are explicit that the one rule the Court of Appeals cannot waive is the deadline for filing a notice of appeal.  Because allowing Cooley to intervene to re-enter California as a defendant would clearly be an end-run around this nondiscretionary limitation, I am confident that an intervention motion would be denied.  Thus, even if Cooley were to win the Attorney General race, he will not be able to intervene on behalf of California in the Prop 8 litigation.

Now, he would likely be able to seek to have California participate in an “amicus” capacity, as a “friend of the court” but not an official party.  Some people have suggested (in the Desert Sun article here, for example) that even such an official representation by the state would harm the plaintiffs’ chances on appeal.  But that is far from clear.

First, in this hypothetical, California’s official approval of the Prop 8 defenders’ conclusions should not affect whether or not the courts conclude that the Prop 8 proponents have or lack standing to appeal.  Subsequent approval by one elected official should not be taken as adequate authorization for the ballot proponents to defend the statute on their own, since the voters did not authorize the proponents to defend even though they could have:  prior initiatives in California have at times specified that their proponents would be empowered to defend them in Court.

Second, the judges of the Ninth Circuit Court of Appeals, the Justices of the U.S. Supreme Court, and just about everyone else knows that Californians are closely divided about the merits of Prop 8’s ban on same-sex couples’ marrying civilly.  The fact that one elected state official (Cooley, continuing this hypothetical scenario), not representing a party to the appeal, believes Prop 8 to be constitutional should therefore not carry much weight.   Indeed, cases from other federal Courts of Appeals have allowed governors to file amicus briefs on behalf of states.  Thus, even if Steve Cooley tried to file a brief arguing in favor of Prop 8 in the Ninth Circuit, Jerry Brown as Governor might be able to file an amicus brief for California arguing against the constitutionality of Prop 8.  Can anyone really think such dueling amicus briefs would have much influence on judicial decisionmaking?

[To complicate the matter for federal jurisdiction scholars who may read this, there is a statute, Section 2403(b) of title 28 of the United States Code, that allows States to intervene for argument on the question of the constitutionality of a statute of the state affecting the public interest.  Assuming a ballot initiative is embraced within the meaning of “a statute,” there is still a question about the interaction of this statute with the Federal Rules of Appellate Procedure, which contain the deadline for parties to file notices of appeal.  Section 2403(b) was clearly written contemplating states that had never been parties to the litigation, as it requires that in suits presenting the kind of constitutional challenge at issue, where “a State … is not a party” the federal court “certify” to the attorney general of the state that there is such a suit.  So the argument that Section 2403(b) is not intended to authorize States to get back into a case they voluntarily chose not to appeal is at least as strong as the general argument about the Federal Rules of Appellate Procedure’s treatment of intervention.

[But even if Cooley were allowed to invoke Section 2403(b)’s intervention for argument purposes on behalf of California, this provision does not appear to contemplate that the state would actually be a party, which would be necessary for Article III standing.  Rather, it provides that the state will “have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the … law relating to the question of constitutionality.” (emphases added)  Thus, a proper Article III party must have already taken the appeal to the Ninth Circuit or the Supreme Court so that there is a constitutional “action, suit or proceeding in a court of the United States” in which California could intervene for the limited purposes authorized by Section 2403(b).  And insofar as Section 2403(b) allows limited intervention as of right by a state even in the Supreme Court, it provides that the court /Court “shall permit the state to intervene” (emphasis added) for limited purposes, not the attorney general to intervene.  Although the attorney general gets the certified notice of the suit, the statute does not prescribe that it is a state’s attorney general who gets to make an intervention decision.  As described above at the Court of Appeals level, Governor Brown might resist a (hypothetical as of this writing) Attorney General Cooley’s attempt to have California intervene at the Supreme Court.  And even if California (and perhaps federal) law ultimately sided with Cooley, as I argued above there would still need to be a proper Article III case in the Supreme Court for California to intervene in.]

2009 Decision Upholding Prop 8 Deeply Wrong, Article Argues

We’re right/We’re free/We’ll fight/You’ll see

Pardon the shameless self-promotion, but I just wanted to note that my article “Equality’s Centrality: Proposition 8 and the California Constitution” has been published by the Southern California Review of Law and Social Justice in Volume 19 Number 1 (Winter 2010), available here.   The piece analyzes text, history, precedent, and political theory to conclude that the California Supreme Court should have held in Strauss v. Horton that Prop 8 was a profound revision to the state constitution that could not be adopted via the initiative process.  Soon additional articles from this symposium issue by National Center for Lesbian Rights Legal Director Shannon Minter, University of Miami law professor Frank Valdes, and USC law graduate Joyce Hahn will also be available online.

Prop 8 Trial Tracker Takes on Prop 8 Proponents' Appellate Brief

"Hey, Pearl, what's bugging you, girl?"

On Prop 8 Trial Tracker, Brian Devine has "attempt[ed] to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8[,] writing about the issues of standing and jurisdiction."  You can read his take here.

I appreciate the value of trying to wade through the Proponents’ filings for the general public.  But I don’t know whether Brian Devine is an expert in the relevant legal areas. (I teach various courses in sexual orientation and the law, constitutional law, and federal courts.)  And the problem here is that significant parts of his analysis are wrong.

For example, he states (and reemphasizes in a comment) that “In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused.”  I believe this is not true.  Rather, the district court “permitted this intervention [of Alan J. Karcher, in his representative capacity as Speaker of the New Jersey General Assembly; Carmen A. Orechio, in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate] because the Legislature had been responsible for the enactment of the statute and because no other party defendant would defend it.”  The defendants made this point in their earlier (and successful) emergency motion to the Ninth Circuit Court of Appeals for a stay of Walker’s judgment.  Since there was no state statute there, nor here, it cannot distinguish Karcher v. May.

Moveover, Brown v. Board of Education was indeed filed as a class action, and whether or not the district court in that case (or the other state cases consolidated with Brown before the Supreme Court), the Supreme Court understood those cases as being class actions. So, since Perry was not even filed as a class action, the propriety of statewide injunction in Brown doesn’t settle the propriety of Walker’s injunction.

Likewise, Loving v. Virginia did not involve a suit for an injunction against the state; Richard and Mildred instead were seeking, and the Supreme Court granted, an overturning of their criminal sentences. Thus, even if the Proponents are right (though I don’t think they are) about the proper scope of Walker’s injunction, that would not conflict with Loving.

All this said, there is plenty of reason for hope still. My blog entry at http://cruz-lines.blogspot.com/2010/08/do-prop-8-proponents-have-standing-to.html gives a pretty lengthy, technical, and careful take on the standing issue.  I’ll also try to blog shortly about the scope of the injunction issue (just the two plaintiff couples, or everyone who may try to marry in California).  Ninth Circuit case law doesn’t clearly dictate that Walker’s injunction was too broad, and I’ll explore relevant Supreme Court precedent.  (In short, I think Vik Amar is wrong.)

But now, I must return to preparing to teach Federal Courts tomorrow morning (Monday, September 20).

Sexual Orientation Discrimination and Sex Discrimination in the Prop 8 Trial Opinion

“A man should put the food upon the family plate”

One of the little-remarked aspects of Chief Judge Vaughn Walker’s lengthy opinion (here) following trial in Perry v. Schwarzenegger, holding California’s Proposition 8 unconstitutional, is its linkage of sex discrimination and sexual orientation discrimination in the context of marriage equality and marriage discrimination.  (I’ve flagged it for reporters.)  Loyola (Los Angeles) law professor Douglas NeJaime has blogged about this for the American Constitution Society (here).  It’s a relatively short read, very interesting and well worth checking out.

Do the Prop 8 Proponents Have Standing to Appeal?

But if you don't change yourself / You have no right to complain


On Thursday, August 12, U.S. District Court Chief Judge Walker issued his decision  to deny an indefinite stay (here) of his ruling that Proposition 8 is unconstitutional (here).  The $64,000 question now on many people’s minds is, will there be an appeal?  Governor Schwarzenegger and Attorney General Brown have stated that the government defendants will not appeal.  The official Prop 8 proponents, who intervened in the trial court to defend the measure, have already filed a lengthy “emergency motion” (here) with the U.S. Court of Appeals for the Ninth Circuit.

But the plaintiffs and Judge Walker have questioned whether the proponents even have the legal entitlement – “standing” – to appeal Walker’s ruling.  Although the answer is not clear, there is a strong argument that the proponents do not.   And if the Ninth Circuit and possibly the Supreme Court agree, then Judge Walker’s decision on the merits holding Proposition 8 unconstitutional and enjoining its enforcement will stand, restoring the freedom to marry to same-sex couples in California.

The question of the proponents’ standing to appeal, or lack thereof, is a complicated one, but it’s grounded in some basic constitutional principles.  Article III of the Constitution limits the federal courts to hearing “cases” or “controversies.”  For some years now the Supreme Court has interpreted this to mean that parties asking federal courts to act must have “standing.”  One constitutional requirement for standing is that the party suffer an injury sufficient to give him, her, it, or them an appropriate stake in the dispute.  This injury must be “concrete and particularized,” and it cannot be a mere “generalized grievance.”  It is not enough that people object to the government not following what they believe the law to be; the Supreme Court uses standing doctrine to limit the number of people who have the right to take up the time of the federal judiciary.  As part of this gatekeeping, the Court has said that the federal courts are not to be treated as "a vehicle for the vindication of the value interests of concerned bystanders."  So, parties need to be injured in some way more than just passionately disapproving of what the government is doing if they’re going to be able to have the federal courts pass on their complaints.

These requirements of injury and standing apply in appeals and not just at trial.  So, in a case called Diamond v. Charles in 1986, the Supreme Court rejected an attempt by a pro-life doctor to appeal a decision enjoining parts of Illinois’s abortion-restricting law.  The state government was a defendant at trial, lost, and opted not to appeal.  Pro-life physician Eugene Diamond had intervened as a defendant at trial, and he tried to appeal.  When the case came before the Supreme Court, the Court dismissed his appeal.  The Court held that Diamond did not show that he had personally suffered or been imminently threatened with an adequate injury.  “The presence of a disagreement, however sharp and acrimonious it may be,” the Court ruled, “is insufficient by itself to meet Art. III's requirements.”

The Prop 8 proponents are in the same position.  They intervened at trial to defend the measure they’d qualified for the California ballot because of their value interests in supporting mixed-sex only civil marriage and their sharp disagreement with the plaintiffs about Prop 8’s constitutionality or unconstitutionality, and because the governmental defendants refused to argue that Prop 8 was constitutional.  As in Diamond, the state was the original defendant, it lost, and it has chosen not to appeal; and now the proponents are trying to appeal to the Ninth Circuit.

In addition, in 1997 the Supreme Court decided Arizonans for Official English v. Arizona, a case dealing with ballot initiative proponents who wanted to defend their measure in the federal courts.  Because the Court held that subsequent developments made the suit challenging Arizona’s English-only initiative moot, it did not need to rule definitively on whether ballot proponents satisfy constitutional standing requirements.  But, in light of established standards for constitutional “injury,” the Supreme Court expressed “grave doubts” that the proponents would have standing in federal court.

Prop 8’s proponents therefore need some way to get around the force of the Diamond decision and the thoughtful dicta in Arizonans for Official English.  The basic gist of their argument is that, since California court decisions allow official ballot proponents to defend their measures in court, that should be enough special stake in challenges to ballot initiatives to satisfy the Constitution’s “case or controversy” requirement and thereby give them standing in federal court.  (The proponents’ standing or lack thereof didn’t really matter in the trial court because state defendants were present, and it was the state’s law that the plaintiff challenged; they therefore had a case or controversy.  The participation of the Prop 8 proponents at trial was like icing on the Article III cake, but we still need cake for the Ninth Circuit to have an appeal.)

The proponents are trying to rely on decisions allowing legislatures standing to defend their statutes as well as other dicta from Arizonans for Official English.  In Karcher v. May in 1987, the Supreme Court rejected an attempt by former New Jersey legislative leaders to appeal a decision enjoining a state law.  Like here, in Karcher the Attorney General and named governmental defendants refused to defend the law.  So the New Jersey legislature, represented by its then-officers, had intervened to defend the law and lost.  But the legislature refused to appeal, and the Supreme Court held that the officers who by then were former officers did not have standing themselves to appeal.  Arizonans for Official English characterized Karcher as “recogniz[ing] that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests.”

The Prop 8 proponents are arguing that they are like representatives of a state legislature, and that state law (here, California court decisions allowing ballot proponents to defend their measures) should suffice to satisfy constitutional standing requirements.  They argue that this state authorization to defend distinguishes them from the Arizona ballot proponents before the Supreme Court in Arizonans for Official English.

But Arizonans for Official English rejected the relevance of Karcher on the ground that the ballot proponents there “[we]re not elected representatives.”  The same is true of the Prop 8 proponents here.   Although Arizonans for Official English further noted that those proponents lacked state law authorization, the Supreme Court did not hold there or even say that this would be sufficient for constitutional standing.  At most the dictum there suggests that such authorization would be necessary.

This is where the uncertainty comes in.  Will the Ninth Circuit and/or Supreme Court rule that when a state authorizes ballot initiative proponents to defend successfully passed measures in state courts, that gives them enough stake in federal court suits challenging those measures to satisfy constitutional standing requirements?  Should they say that?

Arguably not.  In some of the cases relied upon by the proponents in their appeal to the Ninth Circuit, the state or federal legislatures had acted by majority vote to authorize particular parties to represent the entire legislature.  This afforded a significant limitation on the circumstances in which federal courthouse doors would be thrown open to people who merely disapproved of the way laws were being interpreted or enforced (or not enforced).  Moreover, in other cases relied on by the proponents, like U.S. v. Lovett decided by the Supreme Court in 1946 or Cheng Fan Kwok v. INS decided in 1968, the legislatures actually appeared simply as amicus curiae (“friends of the court”), not actual Article III parties; appellate jurisdiction over those cases was proper because the regular governmental defendants were in the case (even though they may have agreed with the plaintiffs there about aspects of the statutes’ unconstitutionality).  Granted, the Supreme Court’s decision in INS v. Chadha did allow Congress’s actual intervention as a defendant when the INS did not defend a challenged statute.  But the Court took pains to argue that the dispute there counted as a constitutional “case or controversy” wholly aside from Congress’s participation.

The Prop 8 proponents’ final argument for why they should be able to file an appeal in the Ninth Circuit claims that Judge Walker erred in denying Imperial County and related defendants to intervene in the suit, and that Imperial County would have Article III standing if that ruling were reversed.  It is not clear that Imperial County would have standing were it a party; Walker opined that it would not, and his reasoning seems sensible.

Regardless of the answer to Article III standing question for Imperial County, though, the fact remains that it is not a party.  And Judge Walker’s order denying intervention does not appear to be wrong.  Although Judge Walker did not rely on the tardiness of Imperial County’s motion to intervene, timeliness of a motion to intervene is a legal requirement for a non-party to join a case (whether intervention “as of right” or “permissive” intervention).  The plaintiffs made persuasive arguments that there was no objective justification for Imperial County to have waited as long as it did to move to intervene.  Judge Walker thought that the parties were not prejudiced by this tardiness and there was no evidence of bad faith, but it is not clear that those factors make Imperial County’s motion timely.

Moreover, Walker convincingly concluded that California law does not give local governments like counties interests separate from those of the state.  His analysis of the other elements of the legal test for intervention rights also seem right.  (The Prop 8 proponents’ motion to the Ninth Circuit makes too much of one poorly worded sentence where Walker wrote that “Imperial County’s ministerial duties surrounding marriage are not affected by the constitutionality of Proposition 8.”  But Walker’s opinion makes clear that he meant that the ministerial nature of the duties would not be affected whether or not Prop 8 were upheld or invalidated, and that he fully appreciated that the ministerial duty would be to issue marriage licenses as directed by the State Registrar, who will act based upon the outcome of the litigation challenging Prop 8.)

None of this means that it is impossible for the Ninth Circuit or the Supreme Court to identify new constitutional standing rules that would empower official ballot proponents like the Prop 8 proponents here, or that those courts could not reject Judge Walker’s eminently reasonable understanding of California law regarding issuance of marriage licenses and somehow find Imperial County to have both a right to intervene and Article III standing to pursue an appeal.  But if existing law is the touchstone, the plaintiff same-sex couples have the advantage here and the Prop 8 proponents should be held not to have standing to appeal in the absence of the state defendants’ deciding to do so themselves.