As advocates of all stripes contemplate the immediate and long-term effects of Judge Vaughn Walker’s decision in the Prop 8 case (i.e., will California begin recognizing new same-sex marriages on Wednesday after 5pm, and will this case’s findings and conclusions ever be extended to the rest of the 9th Circuit and, ultimately, the country), the rather bizarre position of the California State officials comes into focus and presents unresolved legal issues. I, for one, am willing to admit that I’m not sure how the standing arguments will or should be resolved ultimately, but hope this post might inspire some interesting thoughts.

Our prior post celebrated Judge Walker’s process and, in particular, his carefully articulated and substantiated findings of fact. The posture of this case is now so strong that many of us want to see it considered beyond California. But for this to happen, the decision must be appealed to a higher court. It’s more than a little strange to be in a position of wanting a victory to be second-guessed, yet that’s where many of us find ourselves… (The NY Times called for the ruling to be upheld by the US Supreme Court so the victory could be extended nationwide, but it left issues of how to get there to a vague, “it’s up to the 9th Circuit,” which is where much of the commentary has stopped. This post seeks to look at that question a bit harder.)

But as odd as that is, the law of standing is about to make things stranger still. To put standing in the plainest terms possible for benefit of any non-lawyer readers: standing ensures that the federal courts only get involved in real-life controversies between parties that have something at stake; something that can be resolved by an order from the court against one or the other party. So here, the case was nominally brought against the State of California, since that is the entity that was refusing to give the plaintiffs a marriage license. (The State all along said it thought Prop 8 was unconstitutional, but it persisted in refusing to grant marriage licenses to same-sex couples.) That makes for a “live controversy” easily enough, and there is no question that the dispute was of a nature that a federal court can resolve — “give them a license” or “go away, you get no license.” But now the State has accepted the ruling and is prepared to give the plaintiffs what they seek. The proponents of Prop 8 aren’t happy about it, but since they have no power to withhold a marriage license from anyone, there isn’t anything a court needs to rule on.

Thus, we seem to be without a live controversy. Under the traditional rules for standing, Judge Walker is almost certainly correct that the proponents of Prop 8 cannot establish a live case or controversy on their own. Not liking state action has never been enough to create standing, even if your taxes are going to support it or you voted for it; the harm has to be more personal than that. Add to this the well-established doctrine that whether or not to advance an appeal is completely at the discretion of the Attorney General, and the case looks over for good.

So we won and no one can do anything about it — how sad! Because if the case stops here, the reach of the ruling stops in California.

So now comes the tricky part. Do we hope and perhaps even advocate for the proponents of Prop 8 to make new law and find a way to appeal — thereby advancing Judge Walker’s strong opinion higher up the judicial hierarchy, where there are greater legal and geographical implications?

It might be relatively safe do so, since the prospects are rather grim for Prop 8 proponents. But it is worth noting that this is a voter initiative, so there might be stronger arguments that voters/proponents should be able to defend its constitutionality at an appellate level, whether the Attorney General is inclined to do so or not. A writ of mandamus requiring the state to maintain the stance he held at the trial level, at least through one round of appeals, is one possibility. Objectively, though, such a move is extremely unlikely to succeed against the entrenched “discretionary function” doctrine that prohibits the judiciary from telling the executive whether to litigate cases when there is no other legal requirement to do so.

The proponents therefore might try to displace the Attorney General as the true litigators on behalf of the state. When the executive refuses to defend the constitutionality of a legislatively enacted law, the legislature can secure different counsel to do so. (Former Solicitor General Drew Days offers an interesting description of this process in In Search of the Solicitor General’s Clients: A Drama, 83 Ky. L.J. 485 (1994).) Whether the courts would extend this legislative prerogative to an initiative’s drafters is an open question. One major problem is that legislators get someone to do the job instead of the executive by passing a law authorizing that representation (there’s generally no “legislator standing” for individuals acting on their own); and here, there would be no law authorizing anyone to step in for the Attorney General. Precedent suggest that there must be this sort of express consent to have someone else step in to litigate the constitutionality of a challenged law (see eg US v Providence Journal, 485 U.S. 693 (1988)); although again, maybe a different argument could be made when it is a voter initiative rather than ordinary legislation.

The Prop 8 supporters are, in all likelihood, brainstorming ways to advance an appeal. We wonder if they will come up with anything creative that offers a better chance than the hail-marys above. Do we wish them preliminary success?