The bare bones allegation that a statute, ordinance or similar legislative enactment is unconstitutional does not allow a federal court to entertain a lawsuit by any party who objects to the law. In order to challenge a statute as unconstitutional, a party must have "standing." This is not a statutory requirement or a simple court rule; it is rooted in Article III of the United States Constitution. The party invoking federal jurisdiction bears the burden of establishing three elements: (1) Injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan v Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The injury must result from an incursion on a "legally protected interest" that is "concrete and particularized" to a complaining party, as opposed to the generalized grievance of people who believe that the government is not following the law as they believe it to be. It must also be an injury that is "actual or imminent," not conjectural or speculative. Id.
So do the opponents of marriage equality have what it takes to get the case before the Ninth Circuit or the US Supreme Court?
Normally, standing is a requirement that Plaintiffs must establish. For example, same-sex couples in Oklahoma attempted to challenge the state’s constitutional amendment barring same-sex couples from marrying in the state, and named the Oklahoma governor and attorney general as defendants. Bishop v Okla. Ex Rel. Edmondson, 333 Fed. Appx. 361 (10th Cir. 2009). That court held that the "generalized duty [of the defendants] to enforce state law, alone, is insufficient to subject them to a suit challenging a constitutional amendment they have no specific duty to enforce." Id. at 365. Because the attorney general and governor had no authority to issue marriage licenses, "the alleged injury to the Couples could not be caused by any action of the Oklahoma officials, nor would an injunction...against [defendants] give the Couples the legal status they seek." By failing to name the district court clerks who issue marriage licenses as parties to the lawsuit, the Plaintiffs had not established Article III standing and the suit had to be dismissed. Id.
The procedural posture of the Proposition 8 challenge is a little more bizarre, and helps explain how the standing issue arose for defendants. First, neither of the named state defendants, the Attorney General and the Governor of California, elected to defend Proposition 8 on the merits. Because of this, the official proponents of Proposition 8 (Proponents) filed a motion to intervene as of right that was granted on June 30, 2009. To seek intervention under Federal Rule of Civil Procedure 24(a), the Proponents had to make a four-part showing, establishing (1) that their motion was timely, (2) that they had a significant protectable interest relating to the transaction that was the subject of the action, (3) that they were situated so that the disposition of the action might have practically impeded or impaired their ability to protect their interest and (4) that their interest was not adequately represented by the named parties. The district court found that "as official proponents" they had a significant protectable interest, and that they were not adequately represented because the Attorney General informed the court that he believed Prop 8 was unconstitutional.
Here’s the problem: The Supreme Court has yet to decide "whether a party seeking to intervene before a district court must satisfy not only the requirements of" Rule 24 as well as the Article III "case or controversy" requirement. See Diamond v Charles, 476 US 54, 68-69 (1986) (emphasis supplied). What is clear is that regardless of their ability to intervene under Rule 24 before the District Court, the Proponents must establish Article III standing if they are to appeal without the party on whose side intervention was permitted, in this case the State defendants. In other words, even if they could intervene under Rule 24 before the District Court, to maintain the appeal or continue the case they must fulfill the Article III standing requirements.
The case is further complicated by the denial of Imperial County’s Motion to Intervene, which was filed on the eve of trial. Imperial County filed a Notice of Appeal on August 10, 2010 Link (warning PDF). The district court denied their motion to intervene on August 4, 2010 Link to Order (PDF). Although the motion was filed on the eve of trial, the court did not rely on untimeliness when it denied Imperial County’s motion. Rather, the court determined that Imperial County did not have a significantly protectable interest in the litigation, and that in any event it was adequately represented by the state parties to the suit, and had an adequate ability to protect its legitimate interests under state law. First, under state law, the duties of county officials related to marriage are "ministerial rather than discretionary." Lockyer v City and County of San Francisco, 33 Cal 4th 1055, 1081 (2004). Any uncertainty regarding those ministerial duties created by the Prop 8 litigation could be resolved by seeking declaratory relief. See, e.g., County of Santa Clara v Deputy Sheriffs’ Association, 3 Cal 4th 873, 874 (1992) (county filed action for declaratory relief seeking ability to confer limited peace officer status on custodial officials). So the county’s assertion that county officials had an interest as a result of their practical, day to day responsibilities related to marriage notwithstanding, that interest was not a "significant, protectable interest" in determining the constitutionality of Proposition 8. In other words, the interest asserted did not have a relationship to the claims of the Plaintiffs in the Prop 8 litigation.
The other asserted interests were also weak: California law deprived the Board of Supervisors from supervisory power over county officials charged with administering marriage laws, investing that power with the California Director of Health Services. Similarly, "[m]arriage is a matter of statewide concern rather than a municipal affair," and apart from county clerks and recorders, California law does not authorize any other local official "to take any action with regard to the process of issuing marriage licenses or registering marriage certificates." Lockyer, 33 Cal 4th at 1079-81. The County lacked any role in "interpreting the marital statutory scheme, much less one capable of establishing the significant protectable interest required for intervention as of right." (Perry, Doc 709, Order Denying Intervention, August 4, 2010). And regardless of the validity of Prop 8, the County’s asserted interest based on the sworn duty of officials to uphold the state constitution, the duties related to marriage conferred upon the county were purely ministerial.
For the same reasons, the district court determined that the County lacked standing to intervene. Their interest in defending the constitutionality of Proposition 8 based on voter approval of the amendment in the County was "a concern shared by the public at large" that would not do to establish an injury in fact. (Id. at 17, citing Arizonans for Official English v Arizona, 520 US 43, 64 (1997).
Which brings us to the official Proponents of Proposition 8. On August 12, 2010, the court denied their motion for a stay pending appeal. Without addressing their substantive arguments regarding likelihood of success on the merits of Plaintiffs’ claims, we can take a look at what the court determined on standing. Although the court noted that Proponents had a "significant protectable interest," as it had determined when granting their motion to intervene, the court also cited Diamond, 476 US at 69, for the proposition that their interest under FRCP 24(a)(2) may be "plainly insufficient to confer standing." In other words, in the absence of state defendants, the Proponents lacked standing to continue the suit or to appeal the district court’s order. Certainly, the Supreme Court noted in Diamond that a successful intervention at the district court level was insufficient to confer standing "in the absence of the State." Id. at 68.
In their emergency appeal, Proponents argued that they had standing because they had authority under state law to defend the constitutionality of Proposition 8 as agents of the People of California. Link (Warning PDF).
Specifically, Proponents relied on Karcher v May, 484 US 72 (1987) for the proposition that where state law confers authority to defend a statute’s constitutionality on a certain class of potential litigants, federal courts have jurisdiction over the claims brought by them. In that case, New Jersey legislators were permitted to defend a state statute passed over the governor’s veto. Their authorization to defend the statute stemmed from a New Jersey Supreme Court decision authorizing the Speaker of the New Jersey General Assembly and the President of the New Jersey Senate to intervene on behalf of the legislature where "the New Jersey Legislature had authority under state law to represent the State’s interests." Id. at 82 (citing In re Forsythe, 450 A2d 499, 500 (1982)) (emphasis supplied). It should be noted, however, that the New Jersey Attorney General was also present in that case, defending the validity of the law with the New Jersey legislative officials. In other words, the New Jersey Supreme Court did not have to address the question of their independent ability to defend the constitutionality of a legislative enactment under state law, without the Attorney General present as a co-defendant. So although Karcher is cited for the proposition that "legislators may obtain standing to defend the constitutionality of a legislative enactment when authorized by state law," Planned Parenthood v Ehlmann, 137 F3d 573, 578 (1998), the original decision relied upon in Karcher’s dicta did not address the independent adequacy of legislative standing because the Attorney General charged with defending state law’s was present as a defendant. Moreover, most courts to address the question have limited the ability of the state legislatures to obtain standing only where they are specifically authorized to sue "on behalf of the state." Alaska Legislative Council v Babbitt, 181 F3d 1333, 1338-39 (D.C. Cir. 1999).
It is true that proponents and opponents of initiative measures routinely defend and attack those measures in the California courts, but their interest in so doing is not on behalf of the State. For example, the state legislature may challenge an initiative where it "would have a significant and direct effect upon the role and operation of the legislative branch." Senate of the State of California v Jones, 21 Cal 4th 1142, 1156 n.9 (2006) (citations omitted). Additionally, the California Court of Appeals rejected an argument by the Proposition 22 Legal Defense and Education Fund (Fund) that it had a sufficient interest to justify intervention in a challenge to the legality of an initiative. City and County of San Francisco v State of California, 128 Cal App 4th 1030, 1044-45 (2005) (petitioners who supported and campaigned for ballot initiative lacked direct and immediate interest in litigation challenging the initiative’s validity). Proposition 22 was the initiative statute with language identical to Proposition 8, the initiative amendment at issue in the current litigation. While this decision does not address Article III standing, it does suggest that initiative proponents do not have any authorization under state law to defend the State’s interests in the litigation. Absent this authority, it is not clear that initiative proponents could even piggyback on the line of cases which suggest state legislatures may have standing where state law authorizes them to intervene and argue on behalf of the State’s interests.
So do the proponents, or Imperial County, or both, have standing to pursue an appeal? It is too early to say what the Ninth Circuit or Supreme Court will have to say, but at this juncture it doesn’t look so hot for the anti-gay movement.