California voters marked the first time a state had ever taken away a Constitutional right on the same election night that elected Barack Obama the 44th President of the United States. Through Proposition 8, voters in my state rolled back the fundamental right to marry under the state Constitution as upheld by the state Supreme Court earlier in 2008. The United States Supreme Court heard arguments on the challenge today. At issue is the Court's legacy, but also the fate of equality in our country. The most interesting thing, though, is that according to observers, the Court may not decide the Constitutionality of marriage at all, choosing instead methods of dismissing the case that would let stand a lower court decision invalidating Prop 8.
According to SCOTUS Blog
, here are the possibilities of a dismissed case:
First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. [...]
Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision.
If the observers are right and the court chooses to dismiss the case, I expect them to do so on the basis of the Prop 8 proponents lacking standing, and I also think that would be the best outcome, barring an outright invalidation of Prop 8. Let me explain.
The "standing" issue is simple. Proposition 8 is a California state law, and the proper representatives of the state - the Governor, the Attorney General, and both of the legislative chambers of the State of California - have decided not to defend the law in court. It is still enforced as law in California, but the state is not defending it in court. Because of the state's refusal to defend it, the proponents of Prop 8 - who do not
represent the state - has been fighting the battle in court, ostensibly claiming to represent the voters who passed Prop 8. The issue was decided, at the request of a federal court, by the California Supreme Court, which granted the proponents standing. But the US Supreme Court, it appears, is not so sure. That is, despite the California Supreme Court's rule, SCOTUS is not seemingly convinced that the law can be defended by people who have no standing as proper representatives of the State of California.
Basically, the realm of possibilities are made up of three things:
- Proposition 8 is upheld outright.
- Proposition 8 is invalidated on Constitutional grounds (either narrowly or broadly - a broad ruling would strike down not just Prop 8 but all state bans on same sex marriage.)
- The case is dismissed (either due to the inability of the Court to reach a majority, or because the Court decides that the Protect Marriage folks have no standing to defend the law, leaving in place one or more lower court decisions invalidating Prop 8.
Observers seem to think that #3 above is the most probable outcome. I think that if the Court goes with dismissing the case, they will in fact decide that on the basis of standing. Why? Because of all the copouts - and that's what this would be, a copout - standing is the best copout. The Court will be able to say that they do not need to decide the case because those who are defending it do not have the right to represent the State of California. That's a lot easier than admitting that the Supreme Court can't make a decision at all.
Standing to defend a law in court is usually based on two criteria: the government of a state, municipality, etc., have prima facie authority to defend their own laws, and anyone harmed by the overturning of the law has the standing to defend it (just as anyone harmed by its perpetuation has the right to sue to strike it down). The Prop 8 proponents - its campaign group, ProtectMarriage.com - did not meet any of those criteria. They were obviously not the state. They also could not show that any of their members would be harmed irreparably if the law is to be overturned. It turns out that even the best lawyers for the wingbat side is unable to demonstrate how exactly it is that gay marriages harm straight marriages. The California Supreme Court - I believe erroneously - granted them standing nonetheless, to represent the "interests" of the voters who voted for Prop 8.
Except that no such standing exists on the merits. If I pay to fund a ballot measure and it passes, it does not automatically grant me the permission to defend it in court. The government of the State of California represents the people of the state, not campaign groups. Voters have recourse through elections should they decide that they do not like the action (or inaction) of their government. If Californians want a governor or an Attorney General who will defend Prop 8, we will elect one. Individual voters who vote for or against a proposition has no more standing to sue on behalf of that proposition than voters for a given candidate has the right to sue on his behalf without his consent.
A dismissal of the case on standing, though, is also the outcome second best to supporters of marriage equality, next to an outright invalidation of the ban. Not only will it ensure that the lower court ruling invalidating Prop 8, and thus upholding equal marriage in the State of California will remain in place, it will also set a precedence that campaign groups formed to push a ballot proposition are not, by the virtue of such proposition, allowed to become de facto representatives of the whole state, especially if the group is unable to show any harm to its members.
This, in and of itself, would be a great precedence. It could easily pave the way for more challenges in more states without the possibility that a campaign group will be able to gain the legitimacy to represent a state. As the cases across the country move forward, and more and more lower courts rule in our favor, Democratic-leaning states will refuse to defend their own discriminatory laws in court. When that happens, there won't be any campaign group taking up their spots. The cases would move much more quickly, and before long, an overwhelming amount of case law will be back before the Supreme Court, with an inevitable conclusion.
If anyone is concerned that this could apply in reverse - in other words, conservative states could refuse to defend liberal laws - don't be. First of all, there is no prima facie case for unconstitutionality of liberal laws. No one can argue on their face that labor regulations are unconstitutional, or that environmental standards are unconstitutional, or that equal protection laws are unconstitutional. Even if they did, standing would have to be granted, not based on a group representing the state, but its members suffering damage should such laws be overturned. Labor unions have obvious standing in that way to defend labor laws, for example; minority rights groups would have standing to defend their own protection statutes.
The struggle for legal equality is not yet done. If the Supreme Court does not broadly strike down Proposition 8, that struggle will continue no matter the court's decision, and no matter the fate of Proposition 8 in particular. If - as it looks likely - we Californians gain back the right to marry, we will not be abandoning the struggle of our brothers and sisters across the country. But at least, with a decision based on standing, we will no longer have to chase campaign groups when challenging an unfair law. We will be able to fight the abuse of the ballot with the ballot - by electing officials who have the sense not to defend laws that rob our citizens of the freedom to marry. The rights of a minority never should be subject to approval by the majority, but even more than that, a small band of con-artists should never be granted the power to represent an entire state.