California's temporary ban on same-sex marriages is dead. The Supreme Court of the United States held Wednesday morning that supporters of California's Proposition 8 suffered no concrete injury when the anti-gay measure was struck down by a district court, and as such could not appeal that defeat. The
9th Circuit's decision also striking down Prop 8 has been vacated, and as such
Judge Walker's original broad decision striking down Prop 8 governs in California.
This was the outcome which I wasn't the only one to predict, but I will confess that while it ends in the right place (Prop 8: dead) I am not at all crazy about the route. As I've suggested before, I think there's something constitutionally hinky about having an initiative system designed to allow The People to bypass elected officials which allows those elected officials to thwart a full airing of the constitutional issues involved in a referendum. I can too-easily imagine a counterexample which a Republican administration would refuse to defend a liberal initiative in court, such as a hypothetical effort to overturn Prop 209 and instead require California's universities to employ affirmative action practices in admissions, or an initiative imposing new limits on campaign financing, and for which the initiative's supporters would be similarly out-of-constitutional luck.
That's not to say that the Court's decision today was wrong—there's a lot of precedent worth reviewing, and I don't claim to be an expert on all of it—but that both sides deserve a fair reading today. The chief justice authored the opinion of the Court, joined by Justices Scalia, Ginsburg, Breyer and Kagan; Justice Kennedy wrote for the four dissenters.
One warning before we jump into the details: When I say that the Court held that "supporters of California's Proposition 8 suffered no concrete injury when the anti-gay measure was struck down by a district court," I don't want you to be expecting to find language today saying "marriage equality has no effect on heterosexual couples"; this is all discussed on the levels of constitutional structure, not on-the-ground impact, so it's a pretty dry read. Join me for a lack of fireworks, below the fold:
The chief, writing for an unlikely quintet, and I'll jump right into the heart of the reasoning:
[P]etitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.
We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”
Petitioners argue that the California Constitution and its election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and responsibilities that differ from other supporters of the measure.’ ” True enough—but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to the attorney general, petitioners became the official “proponents” of Proposition 8. Cal. Elec. Code Ann. §342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§9607–9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. §9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§9064, 9065, 9067, 9069.
But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California
And nor can they stand in the shoes of the state:
Without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else. They assert that even if they have no cognizable interest in appealing the District Court’s judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a “fundamental restriction on our authority” that “[i]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” There are “certain, limited exceptions” to that rule. But even when we have allowed litigants to assert the interests of others, the litigants themselves still “must have suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute.”
And this isn't one of them:
All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de facto public officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure.” That interest is by definition a generalized one, and it is precisely because proponents assert such an interest that they lack standing under our precedents.
And petitioners are plainly not agents of the State—“formal” or otherwise. As an initial matter, petitioners’ newfound claim of agency is inconsistent with their representations to the District Court. When the proponents sought to intervene in this case, they did not purport to be agents of California. They argued instead that “no other party in this case w[ould] adequately rep-resent their interests as official proponents.” It was their “unique legal status” as official proponents—not an agency relationship with the people of California—that petitioners claimed “endow[ed] them with a significantly protectable interest” in ensuring that the District Court not “undo[ ] all that they ha[d] done in obtaining . . . enactment” of Proposition 8.
More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency §1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals—or elected at all. See Cal. Const., Art. V, §11. No provision provides for their removal. As one amicus explains, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.” Brief for Walter Dellinger 23.
So, big finish? Actually, quiet finish:
The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers. “Refusing to entertain generalized grievances ensures that . . . courts exercise power that is judicial in nature,” and ensures that the Federal Judiciary respects “the proper—and properly limited—role of the courts in a democratic society." States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Justice Kennedy, dissenting for himself and Justices Thomas, Alito and Sotomayor, is similarly restrained, and calls his dissent "respectful" at its beginning and end. But make no mistake about his disagreement:
In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. In my submission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court.
Basically, the dissent argues, initiatives create a special case when it comes to standing and appeals:
There are reasons ... why California might conclude that a conventional agency relationship is inconsistent with the history, design, and purpose of the initiative process. The State may not wish to associate itself with proponents or their views outside of the “extremely narrow and limited” context of this litigation, or to bear the cost of proponents’ legal fees. The State may also wish to avoid the odd conflict of having a formal agent of the State (the initiative’s proponent) arguing in favor of a law’s validity while state officials (e.g., the attorney general) contend in the same proceeding that it should be found invalid.
Furthermore, it is not clear who the principal in an agency relationship would be. It would make little sense if it were the Governor or attorney general, for that would frustrate the initiative system’s purpose of circumventing elected officials who fail or refuse to effect the public will. If there is to be a principal, then, it must be the people of California, as the ultimate sovereign in the State. See ibid., 265 P. 3d, at 1015–1016 (quoting Cal. Const., Art. II, §1) (“ ‘All political power is inherent in the people’ ”). But the Restatement may offer no workable example of an agent representing a principal composed of nearly 40 million residents of a State.
And if the Court’s concern is that the proponents are unaccountable, that fear is neither well founded nor sufficient to overcome the contrary judgment of the State Supreme Court. It must be remembered that both elected officials and initiative proponents receive their authority to speak for the State of California directly from the people. The Court apparently believes that elected officials are acceptable “agents” of the State, but they are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents. At most, a Governor or attorney general can be recalled or voted out of office in a subsequent election, but proponents, too, can have their authority terminated or their initiative overridden by a subsequent ballot measure. Finally, proponents and their attorneys, like all other litigants and counsel who appear before a federal court, are subject to duties of candor, decorum, and respect for the tribunal and co-parties alike, all of which guard against the possibility that initiative proponents will somehow fall short of the appropriate standards for federal litigation.
Did I mention that initiatives were different? Yes, they're different, Justice Kennedy insists:
There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process rather than the courts, here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election.
The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case. The California Supreme Court, not this Court, expresses concern for vigorous representation; the California Supreme Court, not this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not this Court, comprehends the real interest at stake in this litigation and identifies the most proper party to defend that interest. The California Supreme Court’s opinion reflects a better understanding of the dynamics and principles of Article III than does this Court’s opinion.
Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the California Supreme Court recognized, “the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter.” If a federal court must rule on a constitutional point that either confirms or rejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the courts.
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.
Your mileage may vary. It's a happy day for married couples in California, and every Californian who someday hopes to marry the person he or she loves; I just wish we had gotten to this result some other way.