Symposium on Marriage for Same-Sex Couples

"Words words words on cracked old pages/How much of truth remains?"

In the run-up to the California Supreme Court arguments September 6 on the litigation challenging Proposition 8 and the cluster of cases challenging the Defense of Marriage Act, SCOTUSblog is now running an online symposium (link here) about marriage for same-sex couples, featuring commentary from numerous academics and a few others.  My contribution, States Rites? Federalism and marriage litigation, is here.

-DBC

Don't Ask, Don't Tell Enjoined, Again

"I'll be true to you in the whole world"

The United States Court of Appeals for the Ninth Circuit has lifted the stay of Judge Virginia Phillips worldwide injunction of "Don't Ask, Don't Tell" entered in October 2010 after trial in a case brought by the Log Cabin Republicans.  In an order (here) by a three-judge panel comprising Chief Judge Alex Kozinski and Circuit Judges Kim McLane Wardlaw and Richard Paez, the court put the injunction back into place against the military exclusion policy.  Theoretically, a lesbigay person could right now (as of my writing this afternoon, Wednesday, July 6) go into a recruiter's office, identify as lesbian, gay, or bisexual, and be allowed to enlist or start the process.

Interestingly, one of the factors to which the court pointed in its analysis was the  Department of Justice's July 1, 2011 brief in Karen Golinkski's federal lawsuit seeking to have the Defense of Marriage Act or DOMA declared unconstitutional.  The Obama administration followed up its February 2011 announcement that it would not defend DOMA because the law is unconstitutional under the heightened scrutiny that the Justice Department concluded applies (see entry here).  DOJ's brief in Golinksi affirmatively argues this position, at more length than Attorney General Holder did back in February.  Although the brief contains a footnote distinguishing the military context from the marital context, it was the brief's position on heightened scrutiny that the Ninth Circuit relied on in reinstating the injunction against "Don't Ask, Don't Tell."

What still remains to be seen is the Obama administration's response.  It had originally sought the stay of the injunction to give the military time to prepare an orderly transition.  Now, the Ninth Circuit panel concluded that the military has had enough time, most of the enlisted servicemembers have been trained in preparation for the final repeal of "Don't Ask, Don't Tell" (whose repeal Congress authorized), and the balance of hardships has tipped back in favor of those whose constitutional rights are being violated daily by the continued enforcement of the military exclusion.  The Administration could seek to have a stay re-entered.  A request for a larger panel of Ninth Circuit judges to rehear the case "en banc" seems unlikely, as such an 11-judge panel would automatically include Chief Judge Kozinski if it follows the same rules for rehearings of merits decisions (as contrasted with this procedural decision).  So any appeal seems more likely to be made to Anthony Kennedy, the Supreme Court Justice in charge of emergency motions from the Ninth Circuit, or to the full U.S. Supreme Court.  Whether they would reimpose a stay when the underlying statute is clearly not long for this world and the military is close to final repeal is a different matter.  And it's also unclear why the Justice Department might want to seek an appeal under these circumstances, though a general sense that the military does not like courts telling it what to do could be a consideration.

[edited to add link to the order lifting the stay, 8:24 p.m. PDT 20110706]

Bankruptcy Judges’ Defense of Marriage Act Ruling Briefly Summarized

“Cos it's a wave of bankruptcy/Can you believe now what you see?”

As I mentioned here, on Monday, June 13, the federal bankruptcy court in the Central District of California held that the section of the Defense of Marriage Act or DOMA that denies federal effect to lawful marriages between same-sex couples was unconstitutional as applied to a male married couple who filed for bankruptcy.   The court’s opinion in the case (In re Balas) holds that applying DOMA to refuse to treat the legally married same-sex couple equally with married different-sex couples violates constitutional equality principles.

The U.S. Trustee had moved to dismiss Gene Balas and Carlos Morales’s joint bankruptcy petition on the grounds that they do not count as “spouses” under DOMA’s Section 3, which defines “marriage” and “spouse” for most federal law purposes.  The debtor husbands countered that DOMA was unconstitutional, and an extraordinary 20 bankruptcy judges agreed (again, see here).  Although the court began its analysis with the customary presumption that this act of Congress was constitutional, the court ultimately agreed with the married couple that the presumption was overcome in this case.

The bankruptcy court relied on the Supreme Court’s 2010 decision in Christian Legal Society v. Martinez, which stated that “Our decisions have declined to distinguish between status and conduct” in at least some contexts, and Justice O’Connor’s concurring decision in the Court’s decision in Lawrence v. Texas in 2003 (which invalidated laws banning oral and anal sex), where she concluded that a law prohibiting only same-sex couples from engaging in those acts was “directed toward gay persons as a class.”  Accordingly, it concluded that DOMA discriminates on the basis of sexual orientation.  Agreeing with Attorney General Holder’s letter to Congress (see posts here) and following recent federal appellate precedent from the Ninth Circuit (in the case of Major Margaret Witt’s challenge to “Don’t Ask, Don’t Tell”), the bankruptcy court concluded that when the government discriminates on the basis of sexual orientation this is subject to heightened scrutiny, not deferential review, by courts.

In particular, the bankruptcy court agreed with Holder and the debtor couple – and, at several points, Chief Judge Walker’s opinion in Perry v. Schwarzenegger (which held that Proposition 8 was unconstitutional – see posts here) that “lesbians and gay men have experienced a history of discrimination”; that “sexual orientation is recognized as a defining and immutable characteristic”; that “lesbians and gay men face significant political obstacles”; and that “[s]exual orientation is irrelevant to an individual's ability to contribute to society.”  All of these factors weighed in favor of using more than minimal rational basis review to assess DOMA’s constitutionality.  Furthermore, the bankruptcy court accepted the “sex discrimination argument” against DOMA, concluding that the law “is gender-biased because it is explicitly designed to deprive the Debtors of the benefits of other important federal law solely on the basis that these debtors are two people married to each other who happen to be men.”  The court supported this conclusion with citations to Judge Walker’s Perry analysis and decisions from the Ninth Circuit concerning benefits for same-sex partners of court employees.

The court noted that the House Bipartisan Legal Advisory Group had indicated that it might intervene in this case to defend DOMA, but that it ultimately never filed any arguments with the court.  Accordingly, the bankruptcy court turned to the government interests offered in support of DOMA and could not “conclude from the evidence or the record in this case that any valid governmental interest is advanced by DOMA as applied to the Debtors.”  The court therefore held that DOMA not only failed to survive heightened scrutiny but that it could not even pass the more deferential standard termed “rational basis review.”  “For example,” the court concluded, “the joint [bankruptcy] petition of the Debtors will have no effect on procreation or child-bearing.”  Nor could the court conceive of any “fair, just and rational basis to conclude that DOMA will contribute to the achievement of the goal of preserving scarce government resources” or find any “basis in the evidence or record in this case to credit such a proposition.”

This decision suggests that the momentum against the Defense of Marriage Act is building.  The June 13, 2011 ruling in In re Balas is likely to be cited in future litigation against DOMA as well as in efforts to get Congress to repeal the discriminatory Act.  As the bankruptcy court recognized, Gene Balas and Carlos Morales are a struggling family equally in need of the protections of the law, here bankruptcy law, as are families headed by different-sex couples.  Perhaps soon DOMA will be repealed or held unconstitutional even by the current right-leaning Supreme Court, either of which would remove one huge obstacle to equality under law.

20 Bankruptcy Judges Jointly Invalidate Defense of Marriage Act

"Cooperation is the secret to our success"

On Monday, June 13, the federal bankruptcy court in the Central District of California, which includes Los Angeles, held that the section of the Defense of Marriage Act or DOMA that denies federal effect to lawful marriages between same-sex couples was unconstitutional as applied to a male married couple who filed for bankruptcy.   The court’s opinion in the case styled In re Balas may be found here.  Perhaps the most unusual aspect of the decision was who rendered it.

The opinion was signed by 20 judges of the Central District bankruptcy court, including the current Chief Judge.  This is the overwhelming majority of that court, which is authorized to have 24 judges (three of them temporary) and has sometimes had Judge William Altenberger (who is on “recalled status” in the Seventh Circuit) sit with it.  Altenberger signed this opinion, as did Judge Kathleen Thompson, who is not listed on the Central District bankruptcy court’s website, though Judgepedia notes that her term was set to end in 2016 but she had previously announced an intent to retire in January of 2011.  I have not yet tracked down her current status.

One attorney I know has not seen an opinion signed by multiple bankruptcy judges in 40 years of practice, and I have not heard of any such joint signings.  It seems clearly designed to convey the strength of that court’s judgment about the unconstitutionality of DOMA.  The joint signing practice echoes the U.S. Supreme Court’s decision in Planned Parenthood v. Casey, the 1992 decision that refused to overrule Roe v. Wade outright as requested by the first Bush administration.  In Casey, Justices O’Connor, Kennedy, and Souter jointly signed the controlling opinion, rather than following the Court’s customary practice of having an opinion designated as having one author with other Justices concurring in it.  The Casey joint opinion in turn seemed a rather deliberate allusion to the Supreme Court’s 1958 decision in Cooper v. Aaron, where all nine Justices signed an opinion rejecting community resistance to Brown v. Board of Education as an adequate basis for delaying integration of Little Rock High School.  The difference, of course, is that  there is no Supreme Court precedent – yet – directly holding the federal definition section of DOMA unconstitutional, so presumably these judges believe that established constitutional principles, the very same principles cited in Attorney General Holder’s letter concluding that DOMA is unconstitutional (blogged about here), which the bankruptcy court cited, dictate their conclusion.

This case of course can be appealed by the United States Trustee, but it seems unlikely that the Trustee would do so in light of the Holder letter's and the Obama administration’s position of no longer defending DOMA against married same-sex couples.

Effort to Impeach Iowa Supreme Court Justices

“I don't even know which trick I ought to try”

Gavel to Gavel is reporting that impeachment resolutions have been filed in the Iowa House to try to remove the remaining  four Iowa Supreme Court justices who joined the unanimous May 2009 decision holding that the state constitution required an end to the state’s exclusion of same-sex couples from marriage.  The other three justices who had joined that decision were unseated in a retention election in November 2010 after a campaign greatly supported by the National Organization for Marriage, a group dedicated to perpetuating the exclusion of same-sex couples from civil marriage.

Now, several Republican legislators have filed resolutions accusing the justices of exceeding their lawful authority, the Iowa Republican reports.  The charge, in my view, borders on laughable.  The Iowa Supreme Court’s opinion in Varnum v. Brien carefully details the state’s longstanding constitutional tradition of protecting equality, liberty, and fundamental rights, and governmental justifications for denying lesbigay people the right to marry the person they love are, at best, phenomenally weak.

Happily, this now appears to be political grandstanding by several freshman Republican legislators.  Lezgetreal reports that the Iowa House Speaker has stated that he does not expect the resolution (which goes first to the House Judiciary Committee) to be debated on the House floor.

The justices of the Iowa Supreme Court hardly performed a “good deed” in ruling in favor of Iowan’s right to marry – they upheld their judicial duty to uphold the law including the state constitution impartially – but the punishment visited upon the ousted justices was real and ominous, though misplaced.  It will be a relief once the current punitive impeachment efforts are definitively put to rest.

[Edited to add tags]

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