Interview: Analyzing the Upcoming Legal Question That Could Kill Prop 8

Last week the California Supreme Court announced the next chapter in the long saga of Proposition 8 would be written September 6, when it will hear oral arguments on the question of standing.

The court's legal opinion on this issue may very well determine the fate of Proposition 8, the voter-approved initiative that banned same-sex marriage in California only to be nullified by a federal district court on constitutional grounds.

Because the state of California in the persons of Governor Arnold Schwarzennegger and Attorney General Jerry Brown declined to defend Proposition 8, the law's original sponsors took it upon themselves to appeal to the Ninth Circuit Court, which promptly asked for guidance from the California Supreme Court on the rather arcane legal question of whether a ballot initiative's sponsors had the right to defend a measure in the absence of support from state officials.

And that's where we are. Earlier this week, The California Report's Scott Shafer asked UC Davis Law Professor Vikram Amar to explain the legal issue of standing as it pertains to the Proposition 8 case.

Amar said that If the California Supreme Court offers an opinion to the federal court that initiative sponsors don't have any special rights to standing under state law, it's likely that the federal court would accept that and the appeal by Prop 8 backers would die, because it would not have any legitimate backers under the law. They could then appeal to the U.S. Supreme Court, but it's unlikely the court would hear the case, Amar says.

Listen to the interview below. An edited transcript follows each audio clip:

Vik Amar Part 1

Summarize the fundamental question the court will consider

The federal constitution limits the kinds of disputes that federal courts can hear. Article III of the constitution limits the federal courts to resolving only cases or controversies.

As a law professor there's a lot of things I might think about and want a legal answer for. For example, a lot of us might want an answer to the question of whether President Obama could have invoked the 14th Amendment to resolve the debt-ceiling impasse if it had come to that. But just because you want a question resolved doesn’t meant that courts can give you an answer.

So in the federal courts, there's developed this doctrine known as standing, and unless both parties to a lawsuit have a particularized interest in its outcome, a federal court cannot weight in and speak about the legal merits.

The question in this case is whether the proponents of Prop 8 who sponsored it for the ballot have any distinctive interest in whether Prop 8 remains valid or not, such that they can defend it in court when the ordinary defenders of state law, the attorney general and the governor, have decided not to defend it

Given that these proponents defended it the first time around in the lower court trial, why wouldn't they be allowed to now?

To be blunt, I don't think the trial court paid a whole lot of attention to the question of whether the proponents had standing to defend the measure in the absence of the attorney general and the governor.

It's true that they were allowed to intervene in the case. But intervening when there's already a governor and attorney general there who presumably will defend it is different than standing to defend in the absence of those public defendants.

The short of it is is that the lower court didn't really focus on this issue as much as would have been ideal. That's why when the case got to the 9th Circuit, the court saw the issue but didn't have a good record on which to resolve it, which is why the 9th Circuit has been thrashing around a little on the question, including seeking input from the California Supreme Court.

Is there a difference between the state's interest and voters' interest? In other words, the backers of Prop 8 are saying 'we're standing up for the voters, because no one else will…"

Ordinarily in our government we rely on our elected representatives to represent our interests as voters. In states like California, where you have a direct democracy device like initiatives, things are a little more complicated because the very presence of an initiative suggests a belief on the part of Californians that sometimes elected officials in both the legislative and/or executive branch can't always be counted on to vindicate what the people of California really want.

So Prop 8 defenders or proponents take the position "if not us, then who?" Should the voters of California pass a law that should be allowed to die on the vine because the elected representatives aren't doing the people's work?

I think that's a plausible argument. The problem, though, is that the voters who passed Prop 8 never explicitly deputized the proponents of Prop 8 to speak on behalf of the people. Millions of people voted for Prop 8 for all kinds of reasons. And the people who voted for Prop 8 and made it law may not fully agree with the people who wrote and proposed it, so the question is whether they are good representatives or surrogates for the voters when the voters never gave them that power within the text of the proposition itself.

I think this would have been an easier question if Prop 8 had had a provision in it that said in the event that this proposition passes and is challenged in court, and the attorney general and the governor do not defend, then the proponents of the measure who sponsored it for the ballot shall be authorized to defend it. That would be a much easier case.

The same day that Prop 8 passed, the California redistricting commission measure passed, and that did have a provision in it that contemplated the possibility of a legal challenge and did empower the proponents of the measure to defend it in court.

On the one hand, hindsight is 20-20, but this is an issue that careful initiative thinkers could have had on their minds.

Vik Amar Part 2

The U.S. Supreme Court has ruled on this issue of standing with regard to Arizona's English-only law. How is that relevant here if at all?

It's very important because ultimately the question of whether the Prop 8 sponsors have standing in federal court is one of federal constitutional law over which the Supreme Court could have the final say if it wants to take the case.

The Arizona decision over a decade ago suggests that the Supreme Court is a little bit skeptical of initiative-sponsor standing in federal court. But the Supreme Court in that case did not actually render a holding; it had some language in that case that indicated that at that moment the justices didn't seem to think that initiative backers should have standing.

But in this case, that is going to be explored in more depth and the outcome is going to turn on that issue.

There's one other possible difference. As the 9th Circuit recognized when it asked the California Supreme Court for some input: this body or area of law involves a complicated interplay between federal standing doctrine and state law. So it's possible that Arizona state law is different than California state law in that in California, perhaps initiative sponsors have more rights and a stronger interest in vindicating the initiative that they sponsored.

That's exactly what the California Supreme court is being asked to weigh in on: How distinctive, how important are he sponsors of initiatives under California state law? And then the 9th circuit federal court will use that information to help it decide whether standing exists for the purposes of a federal lawsuit.

Has this issue been dealt with by the California Supreme Court before?

The court has had a few sentences in a few cases that might tend to suggest that standing under state law exists on the part of initiative sponsors. But just as was true in the Arizona case, there really is no clear holding in the California Supreme Court, which is why it has a lot of leeway to come up with an answer that it thinks is best today.

Vik Amar Part 3

In the case of legal standing, is there a liberal-conservative split?

Questions like standing are complicated to examine from the perspective of political or ideological inclination. On the one hand, you could say that conservatives should not want cases to be brought in court very easily because they don’t want courts meddling with what legislatures do. So they should generally like a standing doctrine that limits access to courts to reduce litigation.

But on the other hand, a conservative might want a standing doctrine to be more generous to Prop 8 backers, to make sure that conservative initiatives like Prop 8 aren't killed by liberal elected politicians like attorneys general and governors.

So standing and doctrines like it sometimes invert political instincts, because these doctrines are manipulable enough that you can often use them to reach a particular result in a particular dispute without binding yourself in other standing cases down the road, where the parties may be different and your inclinations as to a result may be different.