Do the Prop 8 Proponents Have Standing to Appeal?

Note from Joe: With so much discussion about the legal issues relating to Prop. 8, we're quite honored to have Prof. Cruz write this post for us. He's a Professor of Law at the University of Southern California Gould School of Law and is widely regarded an expert on constitutional law and sex, gender, and sexual orientation law. He also writes regularly at his own blog, Cruz Lines. _____________

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 1983 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 seems 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. Read More...

The clock is now ticking for Obama admin. to decide on DOMA appeals

We'll know in 60 days whether the Obama administration is going to appeal the recent decisions in Massachusetts, which found Section 3 of DOMA is unconstitutional. Judgment was entered today so the clock is ticking.

Activists in Massachusetts are saying don't appeal. Via press release:

Although the ruling was released on July 8, 2010, the judgment in the case was not entered until August 12, 2010. Per Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the deadline for submitting an appeal, if any, must be submitted within 60 days after judgment is entered. Thus, President Obama's Department of Justice has a deadline of Tuesday, October 12, 2010 by which it must decide whether to appeal the decision or not.

Advocates are demanding that President Obama order his Department of Justice not appeal the decision. "This decision by Judge Tauro was a landmark ruling for gay and lesbian equality -- the civil rights struggle of my generation's time. The discriminatory law that is Section 3 of DOMA, which denies married same-sex couples all 1,138 federal marriage benefits, had its day in court and it lost out to the promises of fairness and equality in our Constitution. The President and his Department of Justice should allow that decision to stand." said Paul Sousa, a Boston College Law School student and gay rights advocate in Massachusetts.

Now, I have every confidence in the legal team from GLAD, led by the legendary Mary Bunauto. I know they can whip DOJ's ass again on appeal. And, it's widely assumed that the DOJ will appeal.

While this will be viewed by many as a purely legal decision, there are huge political implications for the Obama administration. Huge. Essentially, the Obama administration will have to go to court and argue that DOMA is constitutional. That won't be good. The usual apologists, lobbyists and job-seekers will tell us that DOJ has no choice moving forward. That's not true.

I want to hear President Obama's opinion on the constitutionality of DOMA. He's called it abhorrent. He's called it discriminatory. Will he ever call it unconstitutional?

If DOJ appeals the decisions that DOMA is unconstitutional, we'll get our answer. Read More...

In Fehrenbach's case, SLDN reports 'negotiations' are continuing with DOJ and Air Force

On Wednesday, Lt. Col. Victor Fehrenbach went to federal court seeking a Temporary Restraining Order (TRO) to prevent his imminent discharge from the Air Force. The decision to discharge Fehrenbach had reached the desk of the Secretary of the Air Force. In addition to the TRO, Victor is seeking a permanent injunction to prevent his discharge. This news created a huge stir in the blogs and traditional media. People seem mystified that President Obama would allow the military to discharge a war hero Fehrenbach.

Well, there's been no decision by the judge -- yet. Just got this from SLDN:

“Negotiations between the U.S. Department of Justice, the U.S. Air Force and the legal team representing Lt. Col. Victor Fehrenbach are expected to continue through at least Monday,” said Trevor Thomas, spokesperson for Servicemembers Legal Defense Network.

Interesting.

That DOJ is even negotiating reinforces my view that the decision to move ahead on the TRO was great work by Fehrenbach's legal team of SLDN and Morrison & Foerster (seriously, the url for the law firm is mofo.com. You wanna mess with them?)

If the Obama administration's DOJ actually thinks that DADT will be repealed by Congress (which was argued to the Judge in the Log Cabin case as a reason to postpone the trial), this should be a no-brainer. There should be no need for "negotiations." But, we've seen time and time again that the Obama administration continues to defend DADT even as it discharges servicemembers using that discriminatory policy. Actions here don't match the President's words or promises. This has got to end.

SLND has a website dedicated to this proceeding here, which includes this key point:

The discharge of Lt. Col. Fehrenbach would dramatically underscore that ‘Don’t Ask, Don’t Tell’ is still the law and all gay and lesbian service members should be on notice.

A couple weeks ago, Dan Choi was discharged. Absent this legal action, the same thing could happened to Fehrenbach. This has to end.

I hope someone at the White House -- maybe the two people we were told by Melody Barnes are the tip of the spear for LGBT issues, Tina Tchen and Brian Bond -- are paying attention. If Victor gets kicked out, it's going to reflect badly on the President. After all, on June 29, 2009, Obama looked Victor "right in the eye and he said, 'We‘re going to get this done.'" Still waiting.

Enough already, Mr. President. As Rachel Maddow said on Wednesday night:

If Don’t Ask, Don’t Tell is going to end, the President could stop enforcement of the policy pending that change. Why isn't he?”

When Robert Gibbs wonders why progressives are upset, this is one shining example. Read More...

Not quite gay, but...

So, this guy sent me an email, and I have to admit, I thought it might be a virus or something. He wrote about how he's raising money to travel around the world taking videos of himself jumping up and down, naked. You can understand my skepticism. But I clicked anyway (hey, I'm human) after first inspecting the link. Turns out the video is actually interesting, and I think certainly does qualify as legitimate performance art. Though it's totally not safe for work - here you go. Curious what you think.

In essence, he's doing the naked version of Where the Hell is Matt? This is Matt below. Not naked. I can't get enough of this video.

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Kate Clinton has some ideas for the anti-NOM rally

GetEQUAL sent this out:

Info. on the Big Commit {A Community Response to Anti-Gay NOM} is here. It's this Sunday, August 15th at 2 PM at Freedom Plaza in DC. Read More...

Follow us on Twitter

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@aravosis - this is my personal account. I tweet only a few things from the blog, most of the content is original stuff I write, or interesting things that other bloggers and journalists, and just interesting people, have tweeted.

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And our writers too!

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About Judge Walker's non-stay stay

LA Times editorial:

Walker made the logical and ethical decision to lift his temporary stay on last week's ruling, but prudently decreed that it would remain in place until Wednesday, giving supporters of Proposition 8 time to bring the issue to the U.S. 9th Circuit Court of Appeals. That might not have been the boldest decision, but it was a fair and judicious one. If the weddings had begun Thursday afternoon — officials in several cities throughout the state, including Mayor Antonio Villaraigosa in Los Angeles, were set up to start officiating at high-profile nuptials — and then were stopped just a few days later by a higher court, that truly would have created whipsawing confusion.

Thursday's decision should, but probably won't, quell some of the undeserved criticism leveled at Walker, who has been shrilly accused of engaging in self-interested "judicial tyranny." To the contrary: Walker stood firm on constitutional principle yet showed respect for the litigants as they take their case to a higher court.

His critics are bigots and conservative Republican opportunists. They're not going to change their spots because he was nice to them.

I'm also not 100% convinced that his decision was the right one, to in essence continue the stay long enough to give the appellate court the decision on whether to stay implementation of his ruling pending the outcome of the appeal (should there be one). We had marriage. They took it away. We are legitimately harmed by not having the right to marry. The bad guys suffer no harm if we have that right a while longer, and then it gets taken away again. And, as the judge noted, he's not even sure they have standing to appeal, let alone have a case. Read More...

In CA, anti-marriage side filed emergency motion for stay

At the Prop. 8 Trial Tracker, Brian Devine reports on the emergency stay filed by the Prop. 8 supporters and explains what will happen moving forward:

As for their arguments on the merits of the stay, there does not seem to be any new arguments that Judge Walker has not already rejected.

This Emergency Motion will be referred to the lead judge of the Motions Panel. If the lead judge is unavailable, the Emergency Motion is referred to the second judge and then the third judge of the Motions Panel. The judge to whom it is referred may either grant temporary relief or convene the Motions Panel (usually by telephone) to decide the motion. My guess is that in a case as newsworthy as this, the lead judge would prefer to convene the entire panel rather than make the decision himself. In any event, there could be a decision on the Emergency Motion within hours after the motion is filed, but it’s more likely that it will take a day or two for the Judge(s) to rule.

And, you have to love this. In its motion, the haters cited this article from GLTNN.com: Advisory: If Judge Walker Says It’s OK to Get Married. Not kidding.

And, it's still unclear if these Prop. 8 proponents can even appeal. Read More...

More on whether Prop 8 decision can be appealed at all

From SCOTUSblog:

The judge raised the possibility that the backers of Proposition 8 — the ban approved by the state’s voters in 2008 — may not have a legal right to appeal his decision, since state officials have declined to defend the ban and seem unlikely to pursue their own appeal. The judge declared: “If the state [officials] choose not to appeal, proponents may have difficulty demonstrating Article III standing” — that is, the legal right under the Constituton to be in court.

The judge said he had offered Proposition 8′s backers a chance to spell out a harm that they would directly suffer if their measure were struck down, and the only reply was that they were interested in defending the measure. They failed, he said, “to articulate even one specific harm they may suffer as a consequence” of an order barring enforcement of the marriage ban.

The judge relied quite heavily upon a 1997 decision by the Supreme Court — Arizonans for Official English v. Arizona. That decision involved a 1988 ballot initiative in Arizona, declaring that English was to be the state’s official language. In that decision (written for a a unanimous Court by Justice Ruth Bader Ginsburg), Judge Walker noted, the Justices expressed “grave doubts” whether those who propose a ballot measure have standing separate from state officials to defend the measure’s constitutionality. (NOTE: While the Court expressed those doubts, it ultimately did not resolve whether ballot measure proponents may appeal to defend a measure when the state does not; the case was dismissed as moot, leaving that issue and others unsettled.)

The judge summed up on this point: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the courts of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction.”

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Rachel on Fehrenbach lawsuit to stop DADT discharge

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