As with standing in the Windsor case, I agree with much of what
Mike Ramsey has to say about Hollingsworth, but again disagree with his
ultimate conclusion, and for very similar reasons that I disagree with his
ultimate conclusion about BLAG.
Merely qua individuals who oppose gay marriage, initiative
sponsors lack a personal interest sufficient to confer standing. But qua sponsors,
they have authority as assignees of the state of California to make arguments
on behalf of their initiative. That’s
the issue of state law that the California Supreme Court considered, and
properly so.
Mike says that “courts exist to vindicate personal legal
interests.” That’s not entirely
true—they also vindicate official interests of the state and its various
branches and officers. Back when the
Prop 8 case was Perry v. Schwarzenegger & Brown, then-Governor
Schwarzenegger or then-Attorney General Brown surely could have hired lawyers
to make arguments on behalf of the State of California that they did not
personally agree with, or concerning which they had doubts. They could also allow the sponsors of initiatives
to do the same thing.
There is, moreover, no Article II issue in Hollingsworth. Just as California is free to have
separately-elected officers like the Attorney General who exercise executive
power independent of the governor, it is also free to establish as a matter of
state law that, when the people of the state pass an initiative, they are
thereby electing its sponsors as pro hac vice state officers authorized to make
arguments on behalf of the state (and take appeals and petition for certiorari)
if other elected officials decline to do so.
Posted at 6:40 AM