So the current question in the whole Prop 8 business is whether there will even be an appeal because the State of California doesn’t want to and the advocates for Prop 8 don’t clearly have standing. This piece by Emily Bazelon is as good a place as any to start if you want to catch up on why standing is a real question.
I’m inclined to agree with the view that there is no standing by private parties to appeal, and so if the State of California declines to appeal, that’s all she wrote – for California, anyway. That, in fact, might please both sides in the actual debate, because neither side is sure enough of how the Supreme Court might rule to be sure they want to take things that far. If Justice Kennedy were to ultimately uphold the ruling, that would mean same-sex marriage nationwide, a bigger loss for the opponents of same than losing California, while if he ultimately overturned it you’d be dealing a huge blow to the proponents of same-sex marriage. But whether or not it’s what both sides might prefer to happen, I’m inclined to think it’s the right legal conclusion.
And I don’t see why it’s an affront to our political principles. First of all, the real affront to our principles is California’s initiative system, which is a colossal failure in practice and would be predicted to be so in theory. And conservatives in particular should be appalled by the idea that republican government means government by popular initiative – certainly the Founders would be.
Denying standing to the Prop 8 proponents to appeal would not imply that a state can void an initiative simply by refusing to defend it. If an initiative passes that the state doesn’t like, and opponents with standing sue, and the state declines to defend the initiative, what happens is what happened in this very case – the proponents wind up offering a defense. And the courts ruled for the plaintiffs. In other words, the only precedent being set is that a state can void an initiative they don’t like if the District court also thinks it’s unconstitutional. And this is a bad precedent, why?
Moreover, I don’t see any particularly perverse incentives being created, because the state, in declining to appeal, is taking an electoral risk. That’s how democracy is supposed to work: elected officials make decisions, and the people hold them accountable. If the people of California don’t like the decisions that the Attorney General and Governor make, they can elect people who think differently and will make different decisions. Of course, this is an argument against initiatives as such, and I’m happy to have it construed so, but the point is that the existence of the initiative process shouldn’t deform the operation of the rest of our system of government. Think of it this way: suppose there were no initiative, but rather an act of the legislature that was struck down by the court. And the legislature simply said, “oh, well, if it’s unconstitutional then never mind” and declined to appeal or to try to pass new legislation that might pass muster. Would that mean that ordinary citizens could go out and appeal on the state’s behalf? Obviously not. So what’s the difference? There’s only a difference if the existence of the initiative process implies that the citizenry at large has become the state. Which is an obvious absurdity.
As an aside, I’m still very skeptical of the “rational basis” reasoning in the decision. Under rational basis review, it’s the burden of the plaintiffs to prove that there’s no rational basis for the law, not the burden of the defendants to prove that there is such a basis, and that’s almost impossible to prove. I think Judge Walker has basically smuggled in an intermediate level of scrutiny under false colors. And what I worry about primarily is that a precedent has been set that would allow judges in many more situations to deem laws not to have a “rational basis” because they think the state’s reasoning doesn’t make sense or the state’s facts are wrong. That having been said, as I’ve said before, I think applying such an intermediate level of scrutiny makes a great deal of sense, and would lead to a similar result. And none of this has any bearing on the question of standing to appeal.