Amar on Prop 8 Decision

Vik Amar has posted a characteristically insightful essay on the Ninth Circuit's panel decision invalidating Proposition 8. After setting out (fatally, I think) why Judge Reinhardt's opinion for the panel finds little support in Romer v. Evans, Vik returns us to the question of standing. In Vik's view, the panel would have been better off holding that the official proponents of Proposition 8 lacked Article III standing to defend the law in federal court. The panel, Vik notes, was not bound by the California Supreme Court's opinion last November that proponents have standing to assert the interests of the state in state court. And there are sensible reasons, grounded in democratic politics, for denying standing to Prop 8's sponsors when elected representatives of California refused to defend the proposition in court. Vik writes:

Proposition 8 proponents were never actually chosen by the people, nor designated by any of California's elected representatives, to speak for the state's electorate. Of course, the measure that the proponents proposed was adopted, but that does not mean that the electorate decided — or intended — that these particular proponents ought to speak or act for the voters in any representative capacity. [I]nitiative proponents not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

Vik suggests that if the Supreme Court hears the case, it might dismiss it on standing grounds. Oddly enough, that outcome may be more likely given that the Reinhardt panel held standing was proper and reached the merits.