UPDATE:  The following post is changed to clarify that briefs in support of the challengers in the Proposition 8 case are due on February 28, one week after the challengers’ brief is due.

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With about three weeks left to think about it, the government’s top advocate in the Supreme Court — Solicitor General Donald B. Verrilli, Jr. — has a choice of getting into the issue of states’ power to define marriage in a big way, or not so big.  He could jump into the middle of it by joining the constitutional challenge to California’s “Proposition 8.”  Or he could take a more modest approach, and support the idea that the constitutional fate of “Proposition 8″ is not properly before the Court.  The second choice may have more political appeal, if that is a factor he will consider.

Verrilli has already made one choice about the “Proposition 8″ case (Hollingsworth v. Perry, docket 12-144).  He passed up a chance, late last month, to file a brief supporting the Californians who are defending the ballot measure’s constitutionality.  The sponsors of the measure have accumulated a great deal of amici support, including briefs from twenty states – but not the federal government.

Now, another deadline looms: a February 28 date, if the Solicitor General wants to get into the case at all.  (That is not necessary; the federal government has never been involved in that case, up to now, and could take a pass on it in the Court.)  On February 21, briefs of the opponents of ”Proposition 8″ are due; one week later, briefs in support of their position are due.   If Verrilli is to take a stand then, his boldest step would be to throw the government’s weight behind the two same-sex couples who — so far — are winning their challenge to the ban on same-sex marriage in California.

The filings in that case by the sponsor of the ballot measure ask the Court to decide whether the Constitution’s Fourteenth Amendment “prohibits the State of California from defining marriage as the union of a man and a woman.”  That is about as broad a way to put the constitutional issue as it can be phrased.  If the Court answers the question on that scale, it could affect not only California’s ban, but also laws and state constitutional amendments in about forty other states that also do not allow same-sex marriage.

There is a narrower way to put the issue, and that is the way it was asked and answered by the Ninth Circuit Court: does the Constitution bar a state, after it once had allowed same-sex marriage, to take it away when one of its reasons for doing so is moral disapproval of homosexuals?  Phrased that way, the Circuit Court found “Proposition 8″ invalid.  It said explicitly that it was not passing on the broader issue of any claim to gay marriage rights.

Solicitor General Verrilli, if he is prepared to give the government’s views on the merits of the California case, would probably do so in response to the Ninth Circuit’s approach.   That would not be as bold a step as coming right out and opposing a state’s authority to define marriage as open only to opposite-sex couples.  Even so, if the Court agreed with that approach and with the Ninth Circuit, that would be the end of “Proposition 8,” and same-sex couples would win the right to get marriage licenses and then marry — in California.   Such a ruling would scuttle only “Proposition 8,” and no other state’s law, because no other state has once allowed same-sex marriage, and then taken away that right.

But when the Court granted review of the Hollingsworth case on December 7,  it said it also wanted the lawyers to file briefs and make argument on whether the ballot measure sponsors had a legal right, under the Constitution’s Article III, to pursue their appeal in defense of their project.  That is what is called the “standing” issue.   If the “Proposition 8″ backers are found to lack “standing” to be in the Court, that would be the end of the case: state officials in California have refused to defend the measure, so there would be no one on the other side without these sponsors.  The Court’s jurisdiction would end with the ending of the lawsuit that way.

What would happen to marriage rights in California after a decision against “standing” would probably be up to lower courts to sort out, in the first instance.  The constitutional reality, though, is that a decision along those lines would mean that the Supreme Court had said little if anything about the scope of a state’s option of banning same-sex marriage.  State authority to define marriage is not being questioned in the other granted same-sex marriage case (United States v. Windsor, 12-307), because the couples who are battling the federal Defense of Marriage Act in that case are already legally married, under existing state law where they live.  The Court, though, may have something to say in that case about whether the federal government has the power to override a state’s choice about who can marry by how federal law allots marital benefits.

If the Solicitor General is going to take a stand in the California case, and limit the government’s argument to the issue over ”standing,” there is a document already in the files of the Solicitor General’s office that could point the way.   In a case that the Supreme Court decided in March 1997 (Arizonans for Official English v. Arizona), then-Acting Solicitor General Walter Dellinger filed a brief opposing “standing” for the sponsors of a 1988 ballot measure that would have made English the language for official actions in that state.  After a federal district court struck down the measure under the First Amendment, the governor chose not to appeal.   The ballot measure’s principal sponsor, Arizonans for Official English, then sought to take up the defense of the provision.

The Ninth Circuit Court allowed them into the case, finding that they had “standing” to defend the measure in the absence of the state.

Even though the case involved a state issue, the federal government’s advocate, Dellinger, filed an amicus brief.   The federal government had an interest in the case, the brief argued, to help ensure “that disputes over the constitutionality of state and federal laws are resolved by courts only when they are presented in the context of an Article III ‘case or controversy.’”  The filing went on to argue that, when a government loses a case in court and decides not to appeal, “persons without Article III standing are not permitted to appeal,” and it argued that the measure’s sponsor did not qualify.

Here were the brief’s key arguments:

“Only the state suffers an injury in fact from a judgment whose sole effect is to prevent the state from enforcing one of its laws against another person.  If the state decides not to appeal such a judgment, private individuals do not have authority to supplant that decision.”  ( For that argument, Dellinger cited Supreme Court precedents from 1983 and 1986.)

“Arizonans for Official English does not have standing based on the concept of legislative standing….In any event, AOE is not analogous to a state legislature.  The fundamental attributes of a state legislature are that its members are elected by the people and it has authority to make laws.  AOE does not have either of those attributes.  The voters have not elected AOE to represent their interests, and the voters, not AOE, enacted [the measure].”  (The brief also said that there was no provision of Arizona law giving the sponsor the authority to stand in for the state.)

The Supreme Court, in its final ruling, agreed with that argument, and found that the sponsors had no right to pursue the appeal.

The sponsors of California’s “Proposition 8,” of course, have an answer to that line of argument.  The California Supreme Court, asked by the Ninth Circuit Court for its views, ruled that the sponsors of a ballot measure do have a right, under state law, to stand in for the state when it opts not to defend such a measure.  That ruling, though, did not settle the question of whether the measure’s sponsors satisfied Article III; that is a federal, not a state, question, and the Supreme Court will have to resolve it in the Hollingsworth case in the final answer it gives to the question it posed for the lawyers.

If the Obama administration turns out to be somewhat sensitive to the appearance of making a direct attack on states’ power to define marriage as one man and one woman only, because of the potential political backlash, an argument over the “standing” issue might well have political appeal as an alternative.

Posted in Hollingsworth v. Perry, U.S. v. Windsor, Analysis, Featured, Merits Cases, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Proposition 8: Will Verrilli follow Dellinger’s lead? (UPDATED), SCOTUSblog (Feb. 5, 2013, 8:07 PM), http://www.scotusblog.com/2013/02/proposition-8-will-verrilli-follow-dellingers-lead/