Proposition 8: Who Will Be Left Standing?

This piece originally appeared in the Huffington Post. 

This week the Ninth Circuit heard arguments about Proposition 8, the uber-controversial California ballot measure defining marriage as between a man and a woman. Put another way, women and women, and men and men, if you want a marriage license, go to the end of the line and then walk straight out the door; California won't give you one of those.

The three judge Ninth Circuit panel heard arguments surrounding two basic questions. First, do proponents of the ballot measure have something called "standing" to appeal the decision of the trial court? Second, is a ballot measure banning same-sex marriage constitutional? This short piece addresses only the first question.

What happened at the trial level?

The federal trial over the constitutionality over Proposition 8 boasted an illustrious cast of characters. The two superstar legal eagles who faced off in the epic battle to pick the next president in 2000 joined forces almost exactly a decade later to have Proposition 8 declared unconstitutional. David Boies and Theodore Olson, the powerhouses from opposing sides of the famous and perhaps infamous case of Bush v. Gore, successfully convinced Judge Vaughn Walker to invalidate Proposition 8.

Apart from all of the debates about the propriety of the proposition, Judge Walker faced a singular question; do "plaintiffs seek to exercise the fundamental right to marry?" While the opinion was 138-pages, the answer was simply, "yes."

Who is left standing?

Simple enough, right? The proponents of Proposition 8 would appeal Judge Walker's ruling to the Ninth Circuit Court of Appeals, contending in essence that Judge Walker got it wrong.
Not so fast. The developments since Judge Walker's August ruling are nothing short of the stuff first year Constitutional Law final exams are built on. Hold on to your hats, we're now primed to enter a cloud of procedural confusion.

People who bring lawsuits (and appeals) in federal courts must have "standing" to do so. In a nutshell, the person suing (or appealing a judgment) better be able to prove that she has or will be injured, and that if she wins the case, it will remedy that injury.

When Boies and Olson filed suit in federal court, they sued, among others, Governor Schwarzenegger and Attorney General Brown as defendants. When Attorney General Brown opted not to defend the suit, Judge Walker allowed a conservative group called "Protect Marriage" to step in and defend the measure.

After Judge Walker's ruling Governor Schwarzenegger and Attorney General Brown selected not to appeal the case, a decision quite likely within their discretion. This didn't sit too well with some proponents of Proposition 8. A conservative group unsuccessfully asked the California State courts to order Schwarzenegger and Brown to appeal.

But, you may ask, "If Judge Walker granted the Protected Marriage group standing to intervene in the case, then they must have standing to appeal the decision to the Ninth Circuit?" Not necessarily so. The ability to intervene and standing to appeal could be different. But let's not go down that rabbit hole just now.
One option for the Ninth Circuit, brought up during the oral arguments, would be to ask the California Supreme Court, whether, under state law, proponents of an initiative have standing to defend it. But as, Davis Boies argued, perhaps issues of federal standing should not be decided by state courts.

What if we have to sit this standing argument out?

If the Ninth Circuit ultimately concludes that proponents of the ballot measure have no standing to appeal, the nation's first trial on the constitutionality of a ban on same-sex marriage will end because there will simply be no one left standing.

A decision that plaintiffs lack standing would, however, be important precedent in another area. Such a decision would mean that if a ballot measure is successfully challenged, and the governor and attorney general do not want to defend that ballot measure, there could be no one who could legally defend that measure. In essence, faced with an attorney general and governor who don't want to defend a measure, the vote of a majority of a state could be overturned by one district court judge.

Is that a problem? Maybe not. The judiciary stands as an important check against the majority. The judicial branch is designed as a break against decisions by the majority that can harm minorities. The judiciary is in many ways the last stop on the train to tyranny of the majority.