Why the Prop. 8 Decision Should Make Liberals Uneasy

It's been pointed out many times that both the liberals and the conservatives on the Supreme Court often seem to reason backwards, starting with the outcome they'd prefer to see, then coming up with a rationale to justify that outcome. For instance, as I noted yesterday, Antonin Scalia was happy to overturn a law passed and overwhelmingly reauthorized by Congress (the Voting Rights Act) because he didn't like the law, then in a decision issued the very next day, thundered against the Court's majority for having the temerity to overturn a law passed by Congress (the Defense of Marriage Act), because that happened to be a law he did like. Fortunately, the sweeping majesty of our jurisprudential history provides an endless supply of rationales a justice can use to support whatever decision he or she would like to make.

But sometimes, a good outcome can produce a dangerous precedent. And that may be just what happened in the Proposition 8 case the Court decided yesterday.

In the case, the majority did what most observers predicted: they found a way to strike down Prop. 8 without mandating that gay people be allowed to marry in every state. They did it by declaring that the plaintiffs in the case didn't have "standing," that is, they didn't have the right to be a party to the case because they hadn't suffered any particular harm. This came about because the California state government had refused to defend Prop. 8 in court, so in the state's absence, gay marriage opponents stepped in to defend the proposition. But if those gay marriage opponents have no standing, the lower court's ruling against the proposition stands, and Prop. 8 was invalidated. That let the Supreme Court strike it down without addressing the law's merits.

Now let's think about how this could play out in a future case. Let's say California voters pass an initiative restricting certain kinds of industrial pollution. The industries responsible for that pollution sue to have the initiative overturned, claiming it's unconstitutional. The Republican governor decides he's on the side of the industries, so he refuses to defend the initiative in court. With no one to defend it, a trial court issues a summary judgment and the initiative is invalidated. Presto—the governor now has veto power over any initiative he feels like killing.

One might argue that in practice, advocates for the initiative would be able to find someone with standing to defend the law. In the Prop. 8 case they couldn't because of the unique nature of the issue; it's impossible to find anyone who has suffered a concrete harm from gay people being allowed to marry, but it wouldn't be hard to find someone who has been harmed by the pollution. But the question isn't so much whether anyone has been harmed, it's who has been harmed, and whether they have the substantial resources needed to mount a defense of an initiative in the courts. The Prop. 8 decision effectively shifts the burden of defending initiatives passed by the voters from the state to private citizens. The state has lawyers, they have a large budget, and they're experienced at defending laws in court. But if the state doesn't have an obligation to defend its laws, you move the game to what could be a tilted playing field.

As I've argued before, the California initiative process is a mess, perverting its democratic intents and placing impossible burdens of lawmaking on voters who aren't prepared to understand the absurd number of initiatives they're asked to vote on. But as long as it exists, the decisions voters make in initiatives shouldn't be subject to a veto by whoever happens to be governor at a particular moment. And if you privatize the business of defending initiatives in court, you'll probably give an advantage to conservatives. The kinds of initiatives liberals favor are usually going to be aimed against well-funded private interests, like big employers affected by an initiative on labor rules, or utilities affected by an initiative on consumer rights, or energy companies affected by an environmental initiative. Those folks have plenty of resources to wage court battles, but it's going to be much harder for the other side to match them. Not impossible—there are labor unions and environmental groups with big budgets—but definitely harder.

I'm not sure if this potential future is what produced the unusual alliances in the Prop. 8 decision. This wasn't liberals on one side and conservatives on the other—the majority consisted of two conservatives (Roberts and Scalia) and three liberals (Ginsberg, Breyer, and Kagan). And yes, it's probably true that in almost every future case, there will be someone who suffered demonstrable harm and thus has standing to be a party to the case. But at a minimum, the state ought to be obligated to defend its laws in some way. If they aren't going to provide the lawyers and do the work to defend a law they disagree with, then maybe they should be required to pay for it.


Am I really the first to comment? I was under the impression that every state has ALWAYS had to recognize marriages officiated in other states, under the "full faith and credit" clause of Article IV Section I. For many years, couples too young to marry (or too young to marry without written parental consent) in their own state have eloped to other states (when I was a teenager, there was an expression in North Florida, "going to Georgia" meaning to run across the border to St. Mary's or Kingsland, about 40 miles from Jacksonville) to get married, then came home and were legally married in their home state and everywhere. Las Vegas marries lots of couples who are just visiting, so they won't have to wait as long as in their home states.

In fact, I believe that was the show-stopper that delayed the admission of Utah as a state for so long: every other state, and Congress, knew that if a Mormon leader brought his harem into another state, they would have to recognize his polygamous marriage. Only when the Mormon Church announced its "revelation " banning polygamy were they allowed to become a state, although they were forced to change the name from Deseret (Mormon term for a honeybee) to Utah (after the native American, or "Lamanite" tribe called the Utes).

So, without DOMA to override the FFAC clause in the special case of same-sex marriages, any state that refuses to recognize the marriage of a newly arrived couple who were married in a marriage equality state (such as by denying them a joint state tax return) could be forced to do so in federal court. However, any state can set any restrictions it wants on the act of marrying WITHIN their state.

When the President opined something along these lines today, he expressed it as a "personal" opinion out of modesty, but I am sure that as a Constitutional lawyer he is aware of FFAC.

I am a liberal (and a lawyer, albeit a fairly new one) and I don't actually think the Prop. 8 decision was wrong on the merits, and not only because of the results. I don't claim to be an expert on standing law but I've read the briefs about it and a few of the cases, etc. in the run-up to this case and I still think it was the right decision, legally speaking, and I'm not overly concerned about any potential issues. For one thing, the Supreme Court's decision was talking about Article III standing for federal courts as a matter of federal law; it wouldn't apply to state courts necessarily who have different rules for this. And as a legal matter, though the Prop. 8 decision was super-careful to avoid addressing what the actual issue at stake was, recognizing that the Prop. 8 proponents had standing would have tacitly been recognizing that people who oppose gay marriage are harmed by gay marriage becoming legal. Legal standing under Article III for private citizens (and the Prop. 8 proponents are private citizens; they had no official status as the decision emphasizes) has always required harm; no harm, no standing, period. That's pretty basic.

Moving on from the legal point, I don't think your example scenario is all that likely. Prop. 8 and DOMA for that matter are unusual cases. In the example of another voter-approved initiative that a Governor decided he didn't like, it would still be a big deal for him to refuse to defend a challenge to it and would likely trigger too big a backlash to make it very likely. Even Prop. 8 was initially defended by Schwarzenegger, not because he necessarily liked it (he said he didn't) but he defended it at the trial court level; Hollingsworth & Co. the Prop. 8 proponents only intervened because they basically insisted they couldn't/didn't trust Schwarzenegger to defend it properly. And the state then later dropped the appeal after the trial court decision spanked them so badly but by then, Prop. 8 was already pretty unpopular and the state could do that without fear of backlash. Not many issues see such a swift change in public opinion as SSM has in the past couple years. And look at DOMA; Obama defended it for 3 full years after taking office; he only changed his mind and stopped defending it in February 2011. I don't think anyone believes that Obama ever liked or supported DOMA or believed in its constitutionality before 2011 (he was on record as supporting the Respect for Marriage Act to repeal it) but he defended it in court anyway for 3 years. I think he only stopped because he realized that he could do so without public backlash, except from a few conservatives who hate his guts and think he never does anything right anyway. It's always been a pretty big thing for any administration-- state or federal-- to flat out refuse to defend a challenged law and I don't think that'll change. And of course DOMA was defended-- as ably as a patently stupid law could be-- by the House, as we saw and of course, the legislature has an interest in seeing the law be enforced (hence why BLAG had standing). Even if a president or governor didn't defend a law, I'm pretty sure the legislature or some other elected official would almost always step up in their official capacities. Prop. 8 was that unique example of a bad voter initiative that was unpopular with a majority of the public almost immediately after it was passed and unpopular with all the state's elected officials too.

Finally, ThinkingDem, actually FFAC isn't what makes states recognize other states' marriages; it falls under another doctrine called "comity" (basically respect for sister state's sovereignty) that's sort of the same thing but not constitutionally based. Comity has narrow exceptions for things that are against a state's strong public policy. States differ as to what they consider a strong public policy, usually considering things like history, the purpose of the laws, etc. In the case of SSM, the state courts that have considered it so far have usually turned on whether or not the state has a "mini-DOMA" in their state constitution. If it's in their state constitution, then yes, the court usually decides that that's evidence that the state has a strong public policy against SSM so they won't use comity to recognize the marriage. If it's only a prohibition on a statutory level but not at the state constitutional level, it usually doesn't count as a strong public policy. As an example, Rhode Island (before this year where it became moot) didn't have SSM itself but it did recognize SSMs performed elsewhere; in considering it, the RI Supreme Court balanced comity with whether SSM was against a "strong public policy" and said it wasn't; it was only a regular statute and comity won out. RI of course did not have a mini-DOMA in the state constitution. Comity almost always wins, the public policy exception being a very narrow one that usually only wins if its a constitutional-level prohibition we're talking about.

Is this really as dangerous a precedent as the author implies? Prop. 8 was already overturned in a lower court, so when -- precisely -- should a state government gracefully give in to the inevitable?

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