Understanding Standing in Hollingsworth v. Perry

On Tuesday, March 26th, the Supreme Court heard over an hour of oral argument in the case of Hollingsworth v. Perry, better known as the case over Proposition 8, California’s same-sex marriage ban. On the grounds surrounding the Supreme Court building, both supporters and opponents of same-sex marriage crowded in, made their presence known, and were prepared to stand their ground, so to speak. And on grounds far-flung from the D.C., in most every crevice of the country, the political and social implications of this case are already reverberating.

Hollingsworth v. Perry asks the Court to consider whether California’s prohibition of same-sex marriage discriminates, unconstitutionally, against the gay community. However, before the Supreme Court Justices could get to this question (and the myriad of nuance and debate that this seemingly straight-forward question espouses), they took up the issue of standing.

Standing is defined as: “The status of being qualified to bring a legal matter before a court because one has a sufficient and protectable interest in its outcome.” Case-law has established that a party may bring a claim when she has actually undergone a tangible harm (economic, physical, etc), or the threat of such injury. Generally speaking, a plaintiff will not be granted standing, and will therefore be unable to bring a case, when she cannot demonstrate an actual injury, or sufficient connection, to the case. (Ironically, with respect to this case, two of the examples Webster’s provides for general standing are “a marriage of many years standing” and “a lawyer of high standing.”) Therefore, if a party fails to establish legal standing, her case will not be allowed to proceed to the substantive legal questions at hand.

Attorney Charles Cooper spoke on behalf of the petitioners. He attempted to plunge right into the legal heart of this case, but Chief Justice Roberts had another plan. Charles began with: “New York’s highest court… remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed…”

Interrupting Mr. Cooper, Chief Justice Roberts inserted, “Mr. Cooper, we have jurisdictional and merits issues here. Maybe it’d be best if you could begin with the standing issue.” And so the Court proceeded, for much of the first half hour, examining whether the petitioners defending Proposition 8 had legal standing. The petitioners in this case are the official proponents of the ballot initiative, not the state of California itself. The state of California would clearly have standing in this case, however they declined to defend Proposition 8 and delegated this task to the petitioners as representatives of California.

Justice Ginsberg initiated casting concern on whether the ballot initiative proponents had standing to bring the case, asking the redundant question, “Have we [the Court] ever granted standing to proponents of ballot initiatives?” Cooper, reluctantly answering in the negative, further cited the exceptional nature of this case, which he called “a clear expression from a unanimous state’s high court.” For the next several minutes, the Justices continued to challenge the petitioner’s standing.

Mr. Cooper concluded his remarks on standing by stating that according to the California Supreme Court’s interpretation of the California Constitution, it falls to the official proponents of ballot initiatives to “defend that initiative if the public officials…refuse to do it.”

Most, in the days leading up to these arguments, have skimmed over this question of jurisdictional standing in favor of the more provocative and compelling substantive, constitutional questions. Certainly, these questions are worth considering further, as any browsing of social media, a newspaper, or a television news outlet will reveal. Yet taking a more nuanced look at the standing issue provides both context and measure for the more meaty arguments to follow.

Remember, the court has never granted standing to proponents of initiatives. Chief Justice Roberts, Justice Sotomayor, Justice Kagan, and Justice Kennedy all brought to light different problematic aspects of granting standing to the petitioners. This could open a potential onslaught of cases, as Justice Kagan pointed out with her hypothetical, “Could a state just assign to anybody the ability to do this [defend an initiative in like Prop 8 in court]?” Chief Justice Roberts, at least, was clear in his view of this point. He cited Article III of the Federal Constitution, concluding- “And I don’t think we have ever allowed anything like that.”

It’s possible that the Supreme Court may simply find that the petitioners do not have legal standing to bring this case. For Hollingsworth v. Perry, legal standing could actually mean the life or death of the case. If the court fails to grant standing to the petitioners, finding that the ballot initiative proponents have not established the jurisdictional grounds necessary to bring this case, then the petitioner’s ability to defend Proposition 8 fails right there.

This case is on appeal from the U.S. Court of Appeals for the Ninth Circuit, where an appellate panel found that the Proposition 8 constitutional amendment banning same-sex marriage was unconstitutional. If the petitioner proponents of Prop. 8 are denied standing, the Ninth Circuit Court of Appeal’s decision holding it unconstitutional will be upheld. All of this standing talk may be a little much to stand, but an understanding of legal standing will raise the standard of conversation and debate on this divisive case. I hope it will help you take stand for compassion, civility, and temperance, no matter your stand on this case.

- Chelsea Langston is an attorney who works at a non-profit consumer organization in Washington, DC.

Photo by Sara Bissig, Center for Public Justice intern and senior at Asbury University