Ninth Circuit Takes the Path of Least Resistance, or: How the Separation of Powers Saved Gay Rights in California

On appeal from Judge Walker’s lengthy, well-defended decision holding California’s Proposition 8 invalid for unconstitutionally relying exclusively on voter antipathy towards their fellow citizens — seriously, I can’t believe this is a rule we even have to have — the Ninth Circuit punts. Professor Volokh excerpts the relevant parts of the order. In brief, the Ninth Circuit has certified a question to California’s high court, asking whether a ballot initiative’s proponents, private citizens, may prosecute its validity on appeal, even if state authorities, the traditional defendants in a suit seeking to enjoin parts of state law, concur in its invalidity.

The Court’s decision to zero-in on the standing question handily avoids any need to engage in the merits, and thus the risk of sustaining Judge Walker’s order, only to be painfully reversed by the Supreme Court. It also raises interesting, novel, and delicate questions of constitutional law. A brief summary.

Under Article III of the Constitution — soon to be read to you from the floor of the House by Republican congressmen who pretend to understand it — the federal “judicial power … extend[s] to” only “cases” or “controversies” arising under federal law. More ink has been spilled over these little words than I care to relate, and not without cause. The Constitutional Congress expressly declined to create a federal judiciary capable of rendering advisory opinions. Therefore, to come before a federal court, a matter must be “live,” such that its resolution will materially affect the rights of real parties in interest. As Justice Scalia — hey, when he’s right, he’s right — has pointed out time and time again, see 17 Suffolk U.L. Rev. 881 (1983), this limitation on the federal bench is an integral part of the separation of powers, and guarantees that the judicial power not lapse into the legislative.

At first, in a case like this, standing is no problem. Because a state government has an interest in its own laws, a citizen suing to overturn a state law presents a justiciable controversy, and the district court may resolve it. But what if the state’s officers (its executive branch) agree with the suit? Simple. No controversy exists on appeal. How could it? The aggrieved citizen has met his state on the field of battle and won; the state has surrendered. The only party with a right to appeal has given it up. For veterans of the creation/evolution “debate,” this is why Kitzmiller v. Dover was never appealed.

Some citizens may object, and prefer the challenged law remain on the books, but it is axiomatic that a citizen’s interest in his government’s laws is too general (courts say, not sufficiently “particularized”) to confer standing, as the Ninth Circuit must know. By certifying this question to the California Supreme Court, the Court is asking only for agreement, and a guarantee that California doesn’t, somehow, authorize citizen-promoters of a referendum to assert the interest their state has surrendered. We can be sure California doesn’t, because this would be an odd rule indeed, and blur the distinction between representative and direct democracy. As any tea partier will remind you, we are not a direct democracy. We are a nation of laws, not of men, and a federal court cannot entertain political disputes between two factions without converting itself, impermissibly, into the very super-legislative body that right so often warns us against.

Admittedly, there’s some tension here between the citizen-as-lawmaker, permitted under the referendum rules, and the state, choosing here to vitiate his hard-won case by simply declining to take the citizens’ cause as its own. And the optics aren’t great. The people’s courts, shutting their doors to the average man on the street, just because California’s government decided to sell out to an unpopular minority? But courts don’t (and shouldn’t) care about the way it looks. They should care about what it is: an attempt to execute an end-run around Article III and the California government, which exercised its lawful discretion to avoid complicity in a scheme by some Californians to deprive others of their federally protected rights, and should be applauded for it.



  1. I’m somewhat confused about the process in this case. As I understand it, basically the original parties were the opponents of Prop 8, who sued the government of California to get in overturned – and the courts found in their favour, right? So if the gov’t doesn’t want to appeal, how can the Prop’s supporters now suddenly appear in the case and try to appeal, when they weren’t even a party to it in the first place? Or have I missed something?

  2. Nope, you’ve got it :). They can’t!

    1. Well, not quite — the Prop 8 supporters were Defendant-Intervenors in the case argued before Walker, so they’ve been in for a while.

  3. Right. “Suddenly” is inaccurate, but they don’t have standing to appeal.

    1. What’s the deal with the political subdivision intervenors? I haven’t been able to find a copy of Walker’s memoranda (I’m assuming he wrote opinions on the issue) on why San Francisco was able to intervene for the plaintiffs and why Imperial County was unable to intervene for the defendants.

      Also… was “controversy” already a term of art when the Constitution was written? It would seem to me that while “cases” doesn’t allow for advisory opinions, “controversy” does, at least given its present vernacular meaning. Not that I’m disagreeing with prudential standing, but as a constitutional matter… I’ve always been bothered by Allen v. Wright’s statement (which for some reason I always attributed to Scalia, not O’Connor) that “Respondents here have no standing to complain simply that their Government is violating the law.”

      1. I’m not sure there’s really much difference between a “case” and a “controversy” in the minds of the Framers. In any event, the ban on advisory opinions is recognised as early as 1793, when Jay rejects Washington’s request to provide one because it is the province of the Executive rather than the Judiciary.

  4. And the earlier rejection of a Council of Review proposed by, I think, Hamilton. And the answer is yes; controversy doesn’t have its colloquial meaning of “debate,” but rather, “dispute,” as in, between two real parties in interest and capable of resolution.

  5. […] issues didn’t matter:contrary to our predictions, the Ninth Circuit disposed of the standing issue […]

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