The Prop 8 Case—Part 2

by Ed Whelan

Continuing from my Part 1 post:

3. Let me take a stab at briefly summarizing the 5-4 divide on standing between the Chief Justice’s majority opinion (pp. 10-16) and Justice Kennedy’s dissent. (That divide is roughly captured by the divergent positions taken by Walter Dellinger in his amicus brief, which the Chief Justice cites at least twice, and by my critique of Dellinger’s amicus brief.)

For background, recall that when the Ninth Circuit panel certified to the California supreme court the question of the role of Prop 8 proponents under state law, the unanimous California supreme court explained that “it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.” Recall further that in Arizonans for Official English v. Arizona (1997), in expressing in dicta its “grave doubts” about whether the proponents of the initiative in that case had standing, the Court noted that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” It thus implied that a state law appointing initiative sponsors as agents of the people would suffice to confer standing.

In determining that Prop 8 proponents do not act as “agents of the people of the State,” the Chief Justice relies on technical concepts of agency set forth in the Restatement (Third) of Agency, including the “essential element” of “the principal’s right to control the agent’s action.” He thus finds it meaningful that Prop 8 proponents “answer to no one.”

Justice Kennedy, by contrast, understands (as I do) the term “agents of the people” to be “shorthand for a party whom ‘state law authorizes’ to ‘represent the State’s interests’ in court.” He points out (as I did) that elected officials “are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents.”

4. I acknowledge that the standing issue in the case is a difficult one, and I’m certainly not entirely comfortable being with Kennedy and against the Chief. I will say, as Justice Alito does say in his dissent in the DOMA case, that I find the case for standing in the Prop 8 case much stronger and clearer than the case for standing/jurisdiction in the DOMA case (largely because I don’t see how the federal Constitution limits the ability of a state to designate who has the authority to assert and defend the state’s interest in a law). I gather that Justice Thomas’s vote against standing/jurisdiction in the DOMA case and for standing in the Prop 8 case reflects a similar judgment.

I therefore find it especially puzzling how Justices Ginsburg, Breyer, and Kagan could vote for standing/jurisdiction in the DOMA case and against standing in the Prop 8 case. Too bad that none of them deigns to provide a word of explanation. (Justice Sotomayor, like Alito, would have found standing in both cases.)

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