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When a state government refuses to defend its marriage laws

A crucial case before the US Supreme Court will determine whether sovereignty lies in the hand of the people or judges.
James S. Cole | 20 January 2013
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I wrote earlier this month about challenges to the principle of government by the people that are raised in connection with the Supreme Court appeals in the so-called “gay marriage” cases. This article focuses on the second case that the Supreme Court agreed to hear, the challenge to the California state constitutional amendment known as Proposition 8.

Readers may recall that California's state supreme court ruled in 2008 that a California statute limiting marriage to one man and one woman violated the state constitution. (In re Marriage Cases, 183 P.3d 384 (Cal. 2008)). The voters of California responded by saying, “Oh no, it doesn't,” by means of Proposition 8. Their votes added the following language to the state constitution: “Only marriage between a man and a woman is valid or recognized in California.” (Cal. Const., art. I, § 7.5.)

Kristin Perry, a woman in a same-sex relationship who had been denied a marriage licence, and other displeased individuals then filed a lawsuit seeking a federal court ruling that no matter what the state constitution says, the federal constitution is offended by a state's ban against same-sex marriage. The federal district court sided with the objectors against the state's voters. On appeal, the US Court of Appeals for the Ninth Circuit affirmed, albeit on the narrow ground that once having acknowledged a right to same-sex marriage (via the state supreme court), California violated the Equal Protection Clause of the 14th Amendment by taking it away.

During the litigation, the officials who were responsible for defending Proposition 8 refused to do so. California law provides for that eventuality by granting the proponents of an initiative the authority to defend it if the authorities will not. That makes sense. After all, opposition by political leaders may be one reason the people enacted a law themselves through the initiative process. Allowing the proponents to defend it in court merely allows the people to have a voice when their law is challenged.

Nevertheless, the same-sex marriage plaintiffs have continued to contest the legal capacity of the proponents to defend the case, in legal parlance, the defendants' “standing.” In federal courts, a party's standing depends on the answer to the question: does the party have something particular to itself riding on the outcome of the case? The courts, despite how their decisions are often reported in the media, are not established as oracles to answer abstract questions about law or to make legal rules as if they were legislatures. Abstract arguments about law and jurisprudence are for professors. Courts are established to apply the law to decide real disputes between people, and, to speak loosely, a party does not have a real dispute if it will not gain or lose something concrete when the case is decided.

The US Court of Appeals for the Ninth Circuit made a thorough review of the question of standing. The Court reasoned that when a state law is under attack, it is the State that is the real party who has something to win or lose. If the State wants to vest the authority to defend state laws in the proponents of initiatives when the State's Attorney General declines to do so, the Ninth Circuit found that the requirements of standing in the federal courts are satisfied.

In fact, to clarify the question, the Ninth Circuit invoked a procedure that is somewhat sparingly used in which a federal court refers a question of state law to the state supreme court, if the state supreme court will take the case. The California Supreme Court accepted the Ninth Circuit's referral, and in a 7-0 decision, it ruled that the proponents of Proposition 8 were indeed authorized to defend the law in the shoes of the State. The Ninth Circuit found such authorization to satisfy the federal requirements for standing under Article III of the US Constitution, saying, “It is [the States'] prerogative, as independent sovereigns, to decide for themselves who may assert their interests and under what circumstances, and to bestow that authority accordingly… All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” (Perry v. Brown, 671 F.3d 1052, 1071-72 (9th Cir. 2012)). It then proceeded to rule against the validity of Proposition 8 on the merits of the case.

When the proponents petitioned the Supreme Court to consider the case, Kristin Perry's brief in opposition argued that the Ninth Circuit was wrong about standing. “Proponents would not suffer any personalized injury as a result of the invalidation of Proposition 8 and thus are unable to satisfy the requirements of Article III, even if, under state law, they have the right to represent the State's interests in Proposition 8.” (Respondents' Brief In Opposition to Petition for Writ of Certiorari, at 26.)

The justices accepted the case but also found Ms Perry's argument on standing to deserve airing. In its order granting the petition on December 12, the Court ordered the parties “to brief and argue the following question: Whether petitioners have standing under Article III, sec. 2 of the Constitution in this case.” The question is thus raised whether the proponents of Proposition 8 must have a personal interest in the outcome in the case to participate, rather than serving as parties in the place of the State.

Generally, in American courts, there has never been a requirement that official representatives of institutions or of other people have a personal stake in the outcome; it is only required that the institutions or people that they are authorized to represent have a stake. A trustee for a trust, for example, may sue and be sued on behalf of the rights of the trust beneficiaries, and the trustee does not have to have any personal money at risk in order to appear in federal court as trustee. The same is true of executors of decedents' estates, or receivers of failed corporations. The official authority to speak and act for the entity or people provides the standing to appear in federal court as a party.

In the Perry case, in which state law so clearly authorizes standing for private individuals to defend the State when the state officials will not do so, it would be quite anomalous for the Supreme Court to rule that the State cannot give that authority to anyone except elected officials.

Everyone recognizes that it is more than a bloodless interest of California in enforcing its own laws that is at stake in this case. Marriage is so basic a social institution that a decision that same-sex marriage is required by the US Constitution will affect every individual not just in California, but in all the United States. Although regular marriages will still be available for men and women, the meaning of marriage in society will be drastically changed. It will no longer represent an institution that is intended both to give order to a special sexual relationship and also to provide a stable and wholesome environment in which to raise children.

As the arguments for same-sex marriage and the ruling of the Ninth Circuit in this case have made clear, the meaning of marriage in the new regime will be limited to that of acknowledging a special sexual companionship for adults. Providing a loving and stable environment in which to raise any children that may come will no longer be one of the primary goals of marriage.

Abraham Lincoln warned us about the consequences of allowing the decisions of the courts instead of the decisions of the people to rule us. At his inauguration in 1861, in addressing the rebellion that was then brewing in the South, he felt it necessary to comment on the Supreme Court's decision in Dred Scott v. Sanford. He declared, “[I]f the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” (A. Lincoln, First Inaugural Address, 1861.)

The Supreme Court in the Proposition 8 case will consider overriding the will of the people as expressed in a state constitutional amendment that was enacted specifically to correct an undemocratic state court decision that overrode democratically-enacted statutes. It would be the height of injustice--it would be sheer judicial dictatorship--for the Supreme Court to rule in such a situation that the people cannot even be represented in the federal courts to defend their democratic decisions.

James S. Cole is a graduate of Harvard Law School who practices law in St. Louis, Missouri.  

This article is published by James S. Cole and MercatorNet.com under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact us for permission and fees. Some articles on this site are published under different terms.

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