There 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