American Foundation for Equal Rights

The Issue of Standing – Your Questions Answered

On September 6, the California Supreme Court addressed the issue of standing in the Prop. 8 case. It is unclear whether the proponents of Prop. 8 are able to appeal the historic District Court decision that ruled Prop. 8 unconstitutional. The court has until early December to issue a ruling that will inform the 9th Circuit Court of Appeals as they take up the merits of the case.

At issue is a procedural matter that is relatively technical and obscure, but the Court’s ruling will significantly influence the next step our case takes.

There are several potential outcomes of the oral argument: The California Supreme Court could deal a blow to Proponents’ ability to appeal the trial court’s careful decision finding Proposition 8 unconstitutional.

Alternatively, the Court could rule in such a way that makes it more likely that the United States Court of Appeals for the Ninth Circuit will consider the constitutionality of Proposition 8 on the merits. The Ninth Circuit’s decision could then wind up before the Supreme Court of the United States.

Prop 8 has already been held unconstitutional. Why are we still in court?

Although we won our case at trial, district court judges don’t always have the final say. They’re usually the first step in a longer process.

After Proposition 8 was found unconstitutional, its official sponsors filed an appeal with the Ninth Circuit. Both AFER and the Proponents submitted written briefs and presented oral argument to a three-judge panel of that court. The Ninth Circuit has yet to issue a ruling on the merits of AFER’s constitutional claims.

Does this mean that the Ninth Circuit is finished with the Proposition 8 case?

No, not yet. Before the Ninth Circuit can rule on the constitutionality of Proposition 8, it must address a legal doctrine known as “standing.” The California Supreme Court’s ruling may have some impact on the Ninth Circuit’s decision about “standing.”

What’s “standing”?
You can think of “standing” as being like “qualifying.” If someone has “standing” to appeal a decision, that means they are “qualified” to appeal.
A party can only have standing if they have been injured in some way that is both real and specific. (The legal terms are “concrete and particularized” and “actual or imminent.”) AFER’s plaintiffs clearly have standing. They have been denied marriage licenses by the State of California.
Why do AFER’s plaintiffs have standing but not the Proponents?
Each party must establish standing for themselves. Unlike the Governor and Attorney General, Proponents are not government officials. California law does not allow them to enforce or defend Proposition 8. Therefore, it is impossible for Proponents to establish standing.
Proponents have not been harmed by the decision invalidating Proposition 8. In fact, in finding Proposition 8 unconstitutional, Judge Vaughn Walker wrote, “Proponents … failed to articulate even one specific harm they may suffer.”
The text of Proposition 8 could have given the Proponents the right to defend it in court. But the Proponents chose not to include such language.
Why has the Ninth Circuit asked the California Supreme Court to get involved?
The proponents of Proposition 8 are putting forth an unusual argument in an attempt to establish standing. They claim that, as the official proponents, California law affords them a “particularized interest” in defending the validity of Proposition 8.
Whether or not they have such a “particularized interest” may depend in part on interpretation of California law. The Ninth Circuit is a federal, not state, court; so they have asked the California Supreme Court for guidance.
Has this ever happened before?
Yes. In the 1997 case of Arizonans for Official English v. Arizona, the United States Supreme Court unanimously expressed “grave doubts” about whether the ballot initiative proponents have standing. However, the Court did not definitively resolve the issue.
How and when will the California Supreme Court rule?
The Court will answer either “yes” or “no” within 90 days of oral arguments.
What if the California Supreme Court answers “yes”? Do the Proponents have standing?
Not necessarily. In Arizonans, the Supreme Court of the United States did not definitely resolve the question of whether ballot initiative proponents have standing.
The California Supreme Court may rule that the Proponents have an interest in defending their initiative, but then the Ninth Circuit may find that such an interest still isn’t enough to establish standing under the United States Constitution.
However, if the California Supreme Court answers “yes,” the Ninth Circuit may conclude that the Proponents have standing and then rule on the constitutionality of Proposition 8. The Ninth Circuit’s eventual ruling could be limited to California, or it could have further-reaching implications. It’s difficult to predict exactly how broad the Ninth Circuit’s ruling will be, or when it will come. No matter what the Ninth Circuit decides, their ruling is likely to be challenged in the Supreme Court of the United States. The U.S. Supreme Court would not be required to take the case, so the Ninth Circuit’s ruling could be the final say. It’s hard to predict exactly what effect a U.S. Supreme Court ruling would have because it could range anywhere from full federal marriage equality to something far narrower or simply a ruling on standing.
What if the California Supreme Court Court answers “no”?
If that happens, then the appeal would likely be dismissed. Marriage equality would then return to California in short order.
Is it better for us if they do have standing, or if they don’t have standing?
We believe that either outcome will lead to a victory for our plaintiffs.
What does this have to do with the release of the trial tapes?

It’s easy to confuse the two issues because they’re both happening at the same time. But they actually have very little in common.
On August 29th, just a few days before our attorneys appear before the California Supreme Court, they will again appear in the district court. There, they will argue that the recordings of the trial are a public record and should be made available to the public.
Although the two court dates are very close, neither one is likely to have an impact on the other. They’re two separate, closely-scheduled issues.
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