Lawyers for the sponsors of California’s Proposition 8 ban on same-sex marriage suggested in a new Supreme Court filing on Tuesday that their case might be sent back to the state supreme court to further analyze their right to defend that measure’s constitutionality. The suggestion came in the reply brief, the final document in the case of Hollingsworth v. Perry (12-144) before the oral argument next Tuesday.

The Court, in granting review of the case, told lawyers to address whether a ballot measure’s backers have “standing” under the Constitution’s Article III to be pursuing an appeal of a lower court decision nullifying their measure. The challengers to Proposition 8 have argued that the sponsors cannot meet that constitutional test because they cannot show that they have suffered any legal injury from that decision.

The sponsors, citing the California Supreme Court ruling finding that they are allowed to stand in for the state in defending a ballot measure that state officials won’t defend, argued that their role is actually to represent both the people of the state and the state itself in this court battle.

In that representative role, the brief argued, “proponents need no more show a personal injury separate from the state’s indisputable interest in the validity of its law, than would California’s Attorney General” or did the leaders of the New Jersey legislature when they were found by the Supreme Court to have “standing” to defend an earlier measure in the Supreme Court.

Under California law, the brief went on, the backers “do have a unique, personal stake in the validity of Proposition 8 that is ‘directly affected’ by this litigation.” At that point in the brief, the proponents inserted a footnote commenting that neither the Ninth Circuit Court nor the California Supreme Court, in finding “standing,” had dealt with the issue of personal injury.

Thus, it said, “it may be appropriate” to send the case back to the state court “if this Court concludes that petitioners [the sponsors]. despite their establishing authority to represent the State’s interest, must also demonstrate personal injury to satisfy Article III.”

The reply brief also defends the constitutionality of Proposition 8 on the merits, relying again heavily on the history of marriage as between a man and a woman, and on the argument that the fundamental purpose of marriage is to foster childbirth. The brief sharply assailed the same-sex couples’ view of marriage in their attack on Proposition 8, calling that perception a “genderless, adult-centered understanding of marriage” that is “a recent academic invention,” stemming from “the modern movement to redefine marriage to include same-sex couples.”

Acknowledging that the political argument for same-sex marriage “has resonated with growing numbers of Americans in recent years,” the brief said that this trend runs counter to the view in most states, but that if marriage is to be redefined, it should be “for the People to decide.”

Recommended Citation: Lyle Denniston, New plea on “standing” on Proposition 8, SCOTUSblog (Mar. 19, 2013, 1:56 PM), https://www.scotusblog.com/2013/03/new-plea-on-standing-on-proposition-8/