Prop. 8 Should Be Decided on the Merits
California Lawyer

Prop. 8 Should Be Decided on the Merits

by Rory K. Little

March 2013

When the U.S. Supreme Court granted review in California's Proposition 8 same-sex marriage case (Hollingsworth v. Perry, No. 12-144), the justices added an additional question: "Whether petitioners have standing under Article III, ยง 2 of the Constitution in this case."

The word "standing," however, does not appear in Article III of the Constitution. Instead, the text provides simply that the federal judicial power shall extend to "Cases" and "Controversies." The Framers expressed no concerns about "standing," and only in the past 90 years has the Supreme Court discovered six or seven "requirements" for a person to be able to pursue their case in federal court.

There are said to be three constitutionally required -- but certainly not textual - minimum requirements for federal standing: injury, causation, and redressability. These are then laden with definitional intricacies, and then further burdened with additional "prudential" limitations the justices have found lurking in constitutional interstices. The result today (as Justice Antonin Scalia once described a different constitutional jungle-gym) is a doctrinal structure of "prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction." (Minnick v. Mississippi, 498 US 146, 166 (1990) (Scalia, J., dissenting).)

It has not always been so. As Chief Justice John Marshall wrote long ago, "[Judicial] power is capable of acting only when the subject is submitted to it, by a party who asserts his rights in the form prescribed by law. It then becomes a case...." (Osborn v. Bank of the United States (22 U.S. 738, 819 (1824).) Not until the 20th century did justices begin to employ "standing" doctrine to limit consideration of legal cases in the federal courts - and many states today still have a broader conception than the Supreme Court does. Indeed, the federal courts were once thought to be so open to legal "controversies" that 41 years ago Professor Christopher Stone could publish a landmark article entitled "Should Trees Have Standing?" (45 S.Cal.L.Rev. 450 (1972).)

The politics of this question were clear, however, and upon Richard Nixon's election on a law-and-order platform the answer from the Burger-Rehnquist Court was a resounding "No!" Standing doctrine has since done the ahistorical work of limiting "political" attacks on governmental acts or policies. For example, just last month a narrowly-divided 5-4 Court found that Americans engaged in international work lack "standing" to challenge likely federal monitoring of their phone calls and emails under the 2008 amendments to the Foreign Intelligence Surveillance Act (Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138 (2013).) The justices produced some 47 pages of opinions -- and found that yet another atextual requirement ("imminence") was lacking so that the lawsuit was blocked before it started.

"Standing" in the Hollingsworth case should not be so complex, and liberal opponents of Prop. 8 should not be so quick to embrace the intricacies of "standing" in an effort to end the case. If the government grants you a permit to build a deck, and you spend a lot of money to build it, and then the government allows a third party to tear it down, you certainly should have "standing" to challenge the tear down of the deck that you paid for. You might not win, but you deserve access to a judicial forum to try. The destruction of what you paid good money for is surely an "injury." Here, the official proponents of Prop. 8 were granted a license as the official sponsors of the proposition. They spent a lot of money to achieve their licensed goal. And as the California Supreme Court recognized, they necessarily should have standing to defend their costly achievement if the state Attorney General declines to do so. It really is that simple.

Liberals and conservatives alike should embrace "standing" in this case (if not the imagined curlicues of the doctrine itself). A decision on the constitutional merits will be far more satisfying in the "arc of history" that this case -- this Controversy -- represents.

Rory K. Little is a law professor at UC Hastings College of the Law in San Francisco.

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