Academic journal article American University Law Review

"Standing" in the Way of Equality? the Myth of Proponent Standing and the Jurisdictional Error in Perry V. Brown

Academic journal article American University Law Review

"Standing" in the Way of Equality? the Myth of Proponent Standing and the Jurisdictional Error in Perry V. Brown

Article excerpt


February 7, 2012 was a triumphant day for marriage equality activists. Relying upon the precedent set forth in Romer v. Evans,1 the U.S. Court of Appeals for the Ninth Circuit invalidated a California initiative restricting marriage to opposite-sex couples in Perry v. Brown2 (Perry VIII). Declaring that the initiative, Proposition 8, deprived same-sex couples of a "societal status that affords dignity to [same-sex] relationships" by barring recognition of those relationships as "marriage,"3 the court concluded that "the People of California violated the Equal Protection Clause" by passing the initiative.4 To do so, the court first determined whether its jurisdiction was properly invoked in the appeal; its analysis centered on the question of standing.5 The court concluded that the proponents had standing, based largely on a theory that initiative proponents were upholding the integrity of the initiative process.

Whatever the merits of the equal protection claim of Perry VIII may be,6 the Ninth Circuit erred by upholding the district court's invalidation of the initiative on substantive grounds. This Note argues that the federal appellate court lacked jurisdiction because the appellants, proponents of Proposition 8, lacked standing. In doing so, it argues that the federal appellate court erred in relying upon the California Supreme Court's answer to the certified question of jurisdiction in Perry v. Brown7 (Perry VII). The state court's decision essentially opined that the proposition's proponents had Article III standing by virtue of state constitutional law conferring upon initiative sponsors a right to defend their own initiatives should the state executive abandon that charge.8 Part I discusses the finding of defender-proponent standing as articulated by the California Supreme Court and adopted by the Ninth Circuit; in addition, it also discusses the case law establishing limits on standing relying solely upon injuries to the sovereign state. Part II contends that non-governmental officials and entities-even ballot sponsors-cannot vindicate the interests of the state because such interests are nontransferable without an injury-in-fact and are unique to the sovereign and its agents. This Note concludes by asserting that, once a ballot initiative becomes law, a proponent cannot rely on the institutional injury to the initiative process and must show some other unique, particularized interest or injury-in-fact to defend the law in federal court.9


On November 4, 2008, California voters approved Proposition 8, a statewide referendum which amended the state constitution and vitiated a previously-recognized right of same-sex couples to marry.10 Two same-sex couples, comprised of Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo, filed suit in the U.S. District Court for the Northern District of California, seeking a preliminary injunction invalidating the initiative-turned-law as unconstitutional.11 During the district court's consideration of the case, a group of Proposition 8 sponsors filed a motion to intervene;12 the trial court subsequently granted the motion.13

The district court agreed with the plaintiffs, holding that the amendment to the state constitution violated the Equal Protection Clause by "enshrin[ing] . . . the notion that opposite-sex couples are superior to same-sex couples."14 In doing so, the district court concluded that "California has no interest in discriminating against gay men and lesbians."15 With the district court denying a stay of its ruling,16 the proposition's proponents appealed the trial court's decision and requested a stay from the Ninth Circuit, which the court granted almost immediately.17 In the meantime, the state government declined to defend the validity of the law.18 In its grant of a stay, the Ninth Circuit directed the proponents to discuss "why [their] appeal should not be dismissed for lack of Article III standing. …

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