Proposition 8 and Standing – the People vs the Executive

Nuances in Supreme Court rulings are often missed by the public—things often turn on esoteric points of law, complicated logic or long-standing precedent that seems antiquated or out of date, or is at conflict with the ‘popular’ will. The recent Supreme Court ruling on Proposition 8 pretty much hits all of those, and leaves us with a question—when the executive authority of a state refuses to follow the will of the voters in the performance of his or her duties, what is the recourse?

Why this question? Because that’s what the Supreme Court actually decided. They did not rule on the judgment of the District Court. They said that the appeal was not properly filed and that therefore the Appeals Court ruling was invalid (and thus vacated) and that they, the Supreme Court, could not rule on the merits of the case. It was an opinion about standing, and nothing more. It did NOT address the issue of gay marriage. What really happened? Keep reading.

Firstly, lets look at how the process of challenging a law in court works. We’ll look at this from a simplified, layman’s viewpoint, and in broad generalities. Ask an attorney (I’m not one) if you want more detail or need legal advice! There are a number of hurdles that must be overcome before the case is actually heard by a court.

The first hurdle to be overcome is jurisdiction—does the court you are asking to intervene have jurisdiction over the subject matter and the persons involved. Not all courts have jurisdiction over all subjects and over all persons. For example, courts in a state that I do not reside nor have any relationship with do not usually have jurisdiction over me. If I don’t go to California, sell into California or otherwise create as ‘nexus’ with California, California Courts have no jurisdiction over me. If you sue me in California State Court, I can likely have the case dismissed for lack of personal jurisdiction. You would likely need to pursue your claim in the Illinois Courts or Federal Court.

Once the court accepts the case based on jurisdiction, there must be a ‘live controversy’ that requires judicial intervention. There must be two adversarial parties, each with a claim that cannot be reconciled. In the case of Proposition 8, the question was about the power of the people to Amend the California Constitution and whether the Amendment and the process violated the California or US Constitution or applicable Federal Law. Almost immediately upon passage of Proposition 8 legal challenges were filed by those who would be affected by the law. The ‘live controversy’ then was between the state (in the person of the Governor and/or Attorney General) and couples who wished to marry but were unable to do so because of Proposition 8.

This brings us to the final hurdle—standing. Do the parties to the suit have the right to challenge or defend the law (or, on appeal, the ruling of the lower court). In order to challenge a law, an individual or group must show particularized (i.e. direct, personal) harm. That is, it’s not possible to challenge the general effects of a law, but only those effects that can be demonstrated to have a direct impact on the person or group bringing the challenge before the court. In this case, the gay couples could show particularized harm (the law discriminates against us by refusing to allow us to marry) so they had standing. The defendants in this case were the Governor and/or Attorney General representing California. Standing for the state is pretty much automatic when defending or appealing a ruling about state law or the state Constitution.

Unless all of the above (and often more) issues are properly resolved, the case will be dismissed for lack of jurisdiction (you may have filed in the wrong court), lack of a live controversy (there is nothing for a court to decide) or lack of standing (you aren’t in a position to show personal harm). At this point, we have a potentially live case.

Another topic that will be important here is the exercise of discretionary authority by the executive branch. Put simply, the Governor, Attorney General, State’s Attorney’s, Public Prosecutor, Police and all other ‘executive branch’ agents exercise discretion every day in how they do their jobs. Not every criminal act is prosecuted, not every alleged crime is investigated, not every failure to pay taxes leads to fines or other punishment, etc. These decisions are left to the executive and discretion is often broad. That said, if we recall Marbury v. Madison, it is possible for a court to issue a Writ of Mandamus that orders an elected official to perform an official duty. Only certain actions will result in writs-they generally apply only to ministerial or legally compelled duties, not to political or discretionary decisions.

So, what happened at in Federal Court? After the Supreme Court of California found Proposition 8 to be properly executed and voted on and thus the California Constitution was properly amended, future same-sex marriage was outlawed in California (previous marriages were held to remain valid). The gay couples involved brought action in the US District Court. They had standing (still affected by Prop 8), the court had jurisdiction (for example, on the claim of equal protection under the 14th Amendment) and there was certainly a live controversy (the Court had a specific question before it). The District Court found that Proposition 8 violated the ‘due process’ clause on the grounds that there was no compelling state interest in refusing gay couples marriage licenses.

When this happens (a court overturns a statute or constitutional provision), it is the state that makes the appeal. Mind you, nothing requires them to do so. They may look at the case, decide they can’t win on appeal and simply allow the ruling to stand. Or, the executive officials may have changed and the new ones do not wish to see the law enforced. The thing is, they do not need to give a reason to the court for declining to appeal—they simply don’t file. That’s what happened in this case. The state of California decided no to pursue an appeal. This is a political decision and an exercise of discretion. That means that it’s very unlikely that the executive could be compelled by mandamus to appeal the decision. The Courts usually do not intervene in cases like this, leaving them to the political process.

At this point, several other groups (for example, Imperial County, CA and supporters of Prop 8) filed to intervene to press the appeal. The Appeals Court requested an opinion from the California Supreme Court as to whether these parties had standing to do so. The California Supreme Court ruled, that under California Law, they did. The Ninth Circuit accepted this ruling and then proceeded to uphold the District Court’s decision. An appeal was then filed with the US Supreme Court.

The US Supreme Court accepted the case and looked at the standing issue. The Court decided that the outside groups did not have standing to press the appeal, in accordance with long-held precedent. The parties could show no particular injury resulting from the District Court’s opinion, nor from the fact that Proposition 8 was not defended by the executive. In this case, the only party that COULD show particular interest was the State of California, and the State, through its governor and attorney general, declined to participate. Thus, there is no live controversy, and no case. The Supreme Court vacated the Appeals Court’s ruling (as was appropriate to do) and thus the ruling of the District Court that Proposition 8 was a violation of the US Constitution was the final judgment in the matter.

This leaves us with an important political question—how do the people enforce a validly enacted law, found to be so by the state Supreme Court, when the executive refuses to enforce it, or, in this case, defend it in court. There are numerous political options, depending on your state Constitution. These include impeachment, recall or replacement at the next election. It’s also possible for the legislature to pass a law requiring that the executive defend the law until final resolution.

To many, this sounds anti-democratic. I submit that not only is it anti-democratic, but that it is proper as well. We do not have (nor do I want) direct democracy. The Founders rejected such notions, looking to the history of populist movements as an argument against it. The Senate was specifically setup to not be a popularly elected branch, but this was foolishly changed by the 17th Amendment. We live in a Constitutional Republic where we delegate sets of powers and authority to the government. That delegation includes discretion and our recourse when we disagree is to replace the executive and/or legislature through political means.

About Stephen Adams

The founder of this site, he has a Bachelor of Science degree in history from Elmhurst College. He is an IT Director that has worked for several major global companies. He has studied the Constitution and Founding Fathers extensively and his hobby is Constitutional Law. He blogs under the “Founder’s Blog”.