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ProtectMarriage and Prop 8 Standing, Round II

By Robyn Hagan Cain on December 13, 2012 | Last updated on March 21, 2019

A little over a year ago, the California Supreme Court made a decision that could affect one of the biggest cases of this generation: Hollingsworth v. Perry.

It wasn't the court's first time to consider California Proposition 8. In 2009, the court upheld the Prop 8 ban on same-sex marriages, but ruled that couples who married before voters approved the initiative would remain married. In 2011, however, the court was considering a different issue: Whether Prop 8 proponents had standing to defend the law in federal court.

At the time, the case -- then captioned Perry v. Brown -- was before the Ninth Circuit Court of Appeals.

Standing was a critical issue because Gov. Jerry Brown and Atty. Gen. Kamala Harris refused to appeal Judge Vaughn Walker's 2010 decision finding the ban unconstitutional. A state's attorney general typically takes responsibility for defending a state's laws, but Harris and Brown opted not to defend Prop 8 because they agreed with Judge Walker.

ProtectMarriage, a conservative coalition that sponsored the 2008 ballot proposition, appealed the ruling to the Ninth Circuit. The appellate court, in turn, asked the California Supreme Court to weigh in on whether ProtectMarriage had standing to defend the initiative.

Finding that Protect Marriage had standing, California Chief Justice Tani Cantil-Sakauye wrote that when public officials decline to defend a ballot initiative, "the official proponents of a voter-approved initiative measure are authorized to assert the state's interest in the initiative's validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative."

In February, the Ninth Circuit Court of Appeals ruled that Prop 8 was unconstitutional.

Last week, the Supreme Court agreed to review the case, both on the question of whether the Fourteenth Amendment Equal Protection Clause prohibits California from defining marriage as the union of a man and a woman, and on the standing issue.

Walter Dellinger discussed the standing possibilities at length in Slate this week, noting:

Whether any plausible standing limits could preclude the Supreme Court from deciding Perry is the more difficult question. But it is important. Many of us hope that Perry is the road to gay right's Brown v. Board of Education. But if we are instead on the highway to a gay Plessy v. Ferguson, then standing may be the last, best off-ramp available.

If the Supreme Court decides that ProtectMarriage lacks standing, we'll have to keep waiting for an up-or-down decision on constitutional protections for gay marriage.

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