Analysis: Court Uses Standing Issue to Punt on Main Prop 8 Question

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gay-marriage-badge.jpgThere has been a lot of talk following the Supreme Court ruling on the Prop 8 case about the issue of standing.  Some have suggested that Governor Jerry Brown screwed up by refusing to defend Prop 8 (along with Kamala Harris, the Attorney General).  My take on this issue is that the Supreme Court used the issue of the lack of standing to cop out of ruling on the broader question – that of constitutionality of bans on gay marriage as a violation of equal protection laws.

Peter Scheer, whose work with the First Amendment Coalition I admire, writes, “While I take no pleasure in saying ‘I told you so,’ this outcome, resulting from a political miscalculation by Jerry Brown, was predictable and predicted.”

In 2010, he criticized the then-Attorney General Brown  for “for his announced decision NOT to defend Prop 8 in the federal appellate courts. I said his absence from the litigation could cause the otherwise promising right-to-marry claim to fail, either in the federal Court of Appeals or the US Supreme Court, for lack of legal ‘standing,’ a constitutional requirement.”

In 2010, Mr. Scheer wrote, “As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. . . . Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8′s supporters.”

He now adds, “The lesson here is that government officials should not rewrite their official job descriptions for short-term political advantage. The official duties and responsibilities of public office exist for institutional reasons that transcend the preferences or ambitions of the office holder. In the Prop 8 litigation, Brown should have held his nose and presented a half-hearted defense of Prop 8, while telling voters his actual views about the law.”

However, I completely disagree with Mr. Scheer here.

First, while I will not argue that the standing issue did not make this easier for the Supreme Court to punt, if you look at their ruling on Affirmative Action, I believe they would have found a way to avoid the main question if they were not ready for a broad ruling.

So, the bottom line for me is that the Supreme Court did not want to rule on the merits of the broader question and, if they did, they would have found a way to do so.

Second, I disagree, as I have all along, that the governor or the government in general has any sort of duty to defend a law that they believe is unconstitutional.

Are you telling me that if California still had an antiquated miscegenation law on its books or a sodomy law prohibiting sex between same sex partners, that the government should expend resources to defend that law, just because it was put on the books by another governor and legislature at another time?

Or do you we believe we are duty bound to have defended the Japanese Internment camps had they remained in existence beyond World War II and someone sued again?

I do not believe there is any kind of ethical or moral duty to defend laws.

And if Mr. Scheer is suggesting that Mr. Brown give a half-hearted defense, then this does no one any favors.  Let us switch hats and suppose that there is a law that we support in the future, and the governor disagrees – do we want the governor obligated to give a half-hearted defense?

I certainly don’t.

There is a better alternative and it also answers the question about the obligation of the government to defend citizen initiatives.  I think Justice Anthony Kennedy gets this point right when he argues, “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.”

I think he’s arguing that the point of the initiative process in part is to allow the people to sidestep the legislature to pass laws. By requiring that the state and the state alone has standing to defend such laws undermines the original purpose of the initiative process.

In short, not only do I believe that Governor Brown has no obligation to spend state resources to defend what he believes to be unconstitutional mandates by the voters, it actually serves to undermine the system of initiatives and referendum to force the people to rely on the same entities that failed to serve their needs in the first place.

And so, while I am not fan of citizen initiatives, I do believe as long as they remain on the books in their current form, the backers of the initiative have a direct stake in defending the outcome.

Further, I believe that while well-intentioned and probably duly frustrated with the lack of total victory, Mr. Scheer, whose work again I greatly respect, is wrong in suggesting that Governor Brown “should have held his nose and presented a half-hearted defense of Prop. 8.”

The error here is in the Court, for failing to note what Justice Kennedy did with regard to citizen initiatives.

However, the Court did deliver a fairly substantial victory to the cause of same sex marriage.

In the course of arguing against standing, they found that one of the chief tenants of the anti-same sex marriage proponents was flawed, and that is the notion that by allowing same sex couples to marry, it denigrates or harms the institution of marriage.

In their ruling the Court writes, “The litigant must seek a remedy for a personal and tangible harm.”

As they note from case law: “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.”

“In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm,” the court writes.  They then cite precedent: “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s  requirements.”

The Court then concludes that the “petitioners have not satisfied their burden to demonstrate standing,” and by extension the Court has found that there is no direct, personal and tangible harm.

That is not an insignificant finding in and of itself.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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13 thoughts on “Analysis: Court Uses Standing Issue to Punt on Main Prop 8 Question”

  1. davisite2

    I believe that the Attorney General swore to DEFEND the CA constitution. The CA Supreme Court ruled that Prop 8 was valid under CA laws. The US Fed Court system had made no ruling that Prop 8 that defined marriage as being defined as a man and a woman violated any civil rights that warranted it being overturned. The SF Federal Court then rules Prop 8 unconstitutional, a decision which the US Supreme majority opinion now says, under its federalism principles, it had no authority to do. The bulldozing of legal process to overturn Prop 8 will ultimately not serve the cause of gay community as it appears that lawful process can be set aside with an end justifies the means argument. This is something that openly gay judges and political candidates will have to deal with. David… as to your argument that equates our Attorney General not defending the CA constitution with NOT prosecuting antiquated laws that may still be on the books, its obvious weakness is telling.

  2. Growth Izzue

    David’s okay with the Gov. and Att. General not doing their sworn duty and the process where a few individuals overturned the will of the voters of the State because it came down on the side he agrees with. Hopefully some day the shoe will be on the other foot and I’m sure he’ll be heard crying like a colic baby.

  3. David M. Greenwald

    Davisite: No court has stepped in to compel Jerry Brown to defend Prop 8, so that would render the first portion of your argument moot.

    “David… as to your argument that equates our Attorney General not defending the CA constitution with NOT prosecuting antiquated laws that may still be on the books, its obvious weakness is telling. “

    I see Prop 8 as no different than any other antiquated law.

  4. David M. Greenwald

    “David’s okay with the Gov. and Att. General not doing their sworn duty and the process where a few individuals overturned the will of the voters of the State because it came down on the side he agrees with. “

    What authority compels him to defend all laws on the books? And why if it exists, what was that part not challenged in court?

  5. David M. Greenwald

    “I believe that the Attorney General swore to DEFEND the CA constitution.”

    Every public official takes an oath of office which is to “I will support
    and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”

    You take the same oath for commissioner in the city of Davis btw, and nowhere am I as a commissioner compelled to defend a challenge to a state ballot measure.

    The oath is probably irrelevant as legally binding document. You’re basically swearing an oath that you won’t break any laws, which you can’t do anyway under any circumstance. There is no law that states that Governor Brown or AG Harris have to defend a ballot measure. They have the ability and standing to do so.

    That’s why I think it would be better to grant standing to ballot measure drafters. It would probably take an act of congress, but they should at least consider it.

  6. wdf1

    davisite2: [i]I believe that the Attorney General swore to DEFEND the CA constitution. The CA Supreme Court ruled that Prop 8 was valid under CA laws.[/i]

    By a similar logic, then, you would say that elected officials of earlier times would have been obligated to defend and enforce laws governing slavery and segregation, even if one found it/them immoral as most people do today?

    If you think that Brown’s actions/inactions don’t reflect your values, you have recourse to the recall process and to the regular election process. If enough other Californians agree with you, you can get a governor/AG in there who will possibly try to enforce Prop. 8. You don’t necessarily have to remain helpless in the face of this decision.

  7. Davis Progressive

    i don’t think anyone’s obligated to defend this law. no one has shown any legally binding ruling that backs their position and if they could, it would’ve been challenge in court

  8. davisite2

    “You take the same oath for commissioner in the city of Davis…”

    Again, your comparisons reflect the weakness of your position. A commissioner swears to “defend” the CA constitution and in the sense that he swears to obey and administer CA laws. As Attorney General, Jerry Brown WAS the official truly charged with defending the CA constitution and he betrayed the CA voters who placed him in office.

    “No court has stepped in to compel Jerry Brown to defend Prop 8..”

    My recollection is that a 3 member panel of the CA Supreme Court(identities never revealed, as far as I know) reviewed Attorney General Brown’s failure to defend the CA constitution and took no action. Their legal reasoning supporting their decision, as far as I know, was never made available publicly to the CA voters.

  9. B. Nice

    [quote]So, the bottom line for me is that the Supreme Court did not want to rule on the merits of the broader question and, if they did, they would have found a way to do so.[/quote]

    Any idea’s on why they did not want to/didn’t.

  10. davisite2

    “elected officials of earlier times would have been obligated to defend and enforce laws governing slavery and segregation..”

    If their elected office called for them to defend their State’s laws when challenged by the Federal Court system,the answer is Yes. If their morals made it impossible to carry out their elected duties, they are obligated to RESIGN. This was an option open to Jerry Brown which would have demonstrated integrity rather than contempt for the populist will of the CA electorate. His other option was to authorize and therefore give standing to other lawyers who would defend the CA constitution.

  11. JustSaying

    This part is simple, B. Nice. When a party doesn’t have standing, there cannot be a decision for them or against them (except to note that they don’t have standing to pursue the case). The idea that the court would have “found a way…to rule on the merits of the broader question” just seems incorrect on its face.

    That doesn’t mean that the Court wanted to rule one way or another and was disappointed because it didn’t get the chance. The justices seem so divided on anything gay that they’d be happy not to be forced into saying anything definitive. The DOMA case was unavoidable, and the the commotion inside the Court must have been intense before they got to their 5-4 split.

    Still, the non-decision on Californis and the DOMA decision together seem to be speeding us toward a case that will confirm that a legal marriage in one state has to be honored in other states. That will finish off the arguments, much the way we now accept interracial marriages that once were prohibited by state laws.

  12. David M. Greenwald

    Except JustSaying, four members of the court found that they had standing and I think Anthony Kennedy was very eloquent in that capacity.

    TO answer B. Nice’s question, I can’t say for sure. Perhaps the court felt that the issue was better decided by the states rather than the court. Perhaps it was more politically motivatd.

  13. wdf1

    davisite2: [i]If their morals made it impossible to carry out their elected duties, they are obligated to RESIGN. This was an option open to Jerry Brown which would have demonstrated integrity rather than contempt for the populist will of the CA electorate. His other option was to authorize and therefore give standing to other lawyers who would defend the CA constitution.[/i]

    Jerry Brown refused to defend Prop. 8 while A.G., and used that fact as a campaign point while running for governor in 2010 ([url]http://www.jerrybrown.org/civil-rights[/url]). Kamala Harris was very open about opposing Prop. 8 during her campaign ([url]http://en.wikipedia.org/wiki/California_Attorney_General_election,_2010#The_campaign[/url]). Neither attempted to deceive voters about their intentions.

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