9th Circuit, Cal. Supreme Court Reversed: No Prop. 8 Standing - U.S. Ninth Circuit
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9th Circuit, Cal. Supreme Court Reversed: No Prop. 8 Standing

Ladies and Gentlemen, we have arrived at the latest Prop 8 destination. And here it is:

The petitioners, also known as the proponents of California’s Proposition 8, which amended the California Constitution to define marriage as “the union of a man and a woman,” argue that the Equal Protection Clause does not prohibit the State of California from employing such a definition.

The respondents, same-sex couples that wish to marry, ask whether California, having previously recognized same-sex marriage, can withdraw that right through a referendum in light of the Supreme Court’s holding in Romer v. Evans.

The Ninth Circuit, after consulting the Supreme Court of California via a certified question on issues of standing, ruled in the respondents' favor. However, the U.S. Supreme Court, in what seems to be a daily occurrence (some might even call it a hobby), vacated the Ninth Circuit's opinion and tossed the entire dispute for lack of standing

Cal. Supreme Court Can't Issue "Ticket to the Courthouse"

It all comes back to that eternal question: what difference does it make to heterosexual couples whether the state recognizes same-sex marriage? In order for a "case or controversy" to exist for Article III standing purposes, there has to be a particularized injury. The proponents of Prop. 8 suffer no injury from the recognition of gay marriage, other than a generalized dispute over the principles of the issue.

The Ninth Circuit recognized this issue, certifying a question to the California Supreme Court, asking whether the proponents of an initiative have the right, under California law, to argue on behalf of the initiative in court. When the California Supreme Court answered the question in the affirmative, the Ninth Circuit proceeded to the merits.

Unfortunately, they whiffed on the question's formulation. The Supreme Court today highlighted that, "standing in federal court is a question of federal law, not state law. And no matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary."

Settled Law?

The majority is correct -- it is settled law that third-parties cannot argue on a state's behalf when the state refuses to appeal an adverse ruling striking the law down. In Arizonans for Official English v. Arizona, the Supreme Court, while finding the case moot on other grounds, expressed grave doubts as to whether standing existed, as the proponents of the initiative lacked "a direct stake in the outcome."

While that was dicta, the case is factually analogous. Proponents of an initiative sought to fight to uphold the law in court, while the state declined to appeal.

In another case, Karcher v. May, New Jersey lawmakers sought to fight on a law's behalf. They were allowed in the lower courts, but after they were booted from office, the Supreme Court refused to allow them to proceed, as they were no longer acting in their official capacities.

Here, the Prop. 8 proponents have no official capacity, at least once the law is on the books. No capacity, no standing, apparently.

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