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12/17/2012

More on Hollingsworth Standing
Chris Green (Guest Blogging)

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.