In its conclusion, the majority in Hollingsworth v. Perry stated that
states “cannot alter [the role of the Federal courts in determining standing]
by issuing to private parties who otherwise lack standing a ticket to the
federal courthouse.” My objective is to demonstrate why I consider that the majority
missed important distinctions about the status of the petitioners/proponents in
Hollingsworth and why they did and do
have standing in accordance with the authorities relied upon by the majority.
To be clear about what follows, the
majority in Hollingsworth concluded
that the Federal courts, including the Supreme Court of the United States, did
not have jurisdiction to hear the petitioners’/proponents’ writ of certiorari
because they did not have standing—a vital issue for presenting a matter over
which the Federal courts can have jurisdiction. Without standing, there is no
jurisdiction. As the majority notes, it is not enough that the would-be party
have “a keen interest in the issue” for more is required. This party, in order
to be properly before the Federal judiciary, must have “a concrete and
particularized injury.” The Hollingsworth
majority concluded that the petitioners/proponents did not enjoy this status,
and therefore they did not have standing, and therefore the Federal judiciary
did not have jurisdiction. In reviewing the authority that applies to the issue
of standing and the majority’s use of this authority, I conclude that they, the
majority, were wrong. Here’s why:
First of all, there is no question
that the method of enacting Proposition 8 was a lawful means of amending the laws
of the State of California, specifically its constitution. Procedural challenges
to the amendment were nullified by the lawful authorities of the state. Moreover,
the amendment was narrow and did not adversely affect the interests of those
who sought legal protection of same-sex unions. The gist of the matter was that
the term “marriage” would not be given to these unions which otherwise enjoyed
rights and privileges protected by other laws of the state. However, proponents
of same-sex unions were not satisfied because they wanted to use the
nomenclature of “marriage” to apply to their unions. The legal obstacle they
faced was that the amendment to the state’s constitution defined “marriage” as
the union of a [one] man and a [one] woman. Consequently, those advocating for
the legal ability to use the term “marriage” for same-sex unions challenged the
legal validity of the amendment to the state constitution in Federal District
Court. So I return to the status of the petitioners/proponents in Hollingsworth.
As the majority noted in Hollingsworth, executive members of the
state government—including the governor and attorney general—have the
conventional duty, amongst other matters, to support and defend the Constitution
of the State of California “against all enemies, foreign and domestic” and that
these obligations are done so “freely, without any mental reservation or
purpose of evasion.” As it turns out, the governor and the attorney general
enforced the amendment to the state’s constitution contained in Proposition 8;
however, when the time came to defend it, they refused to do so in violation of
their constitutional oath.
This left a lacuna in the
conventional mechanism for defending a lawfully promulgated state law, so the
petitioners/proponents in Hollingsworth
stepped in. We all need to be mindful that the petitioners were also the
proponents of Proposition 8 [hence my use of the term “petitioners/proponents]
who, under the laws of California, were analogous to legislators who might have
otherwise been involved in the promulgation of the state’s laws including
amendments to its constitution. When the Federal District Court allowed the
petitioners/proponents to intervene in the Federal proceedings, it did so
conscious of the fact that the governor and attorney general failed in their
constitutional duty to protect the constitutional amendment. But it is crucial
to recall that the petitioners/proponents of Proposition 8 were not mere
citizens asking the Federal judiciary to recognize them as substitute
defenders; rather, they were the initiator-proponents of the amendment who were
the very people who worked long and hard for the crafting of its language, for
the seeking of signatures to place their initiative on the ballot, and for the
advocacy essential for its passage by the general population of citizen-voters.
Without the efforts of the petitioners/proponents, there would have been no
Proposition 8 and no amendment to the state’s constitution regarding the use of
the term “marriage.”
When the state officials lawfully
charged with the legal duty to defend the state’s constitution in the Federal
challenge to its legality failed to do so, the petitioners/proponents stepped
in. At first, no questions about their status, and therefore their standing,
were raised. However, the Ninth Circuit eventually raised a concern about the
petitioners/proponents status, and certified a question presented to the
California Supreme Court: whether the official proponents of the successful
amendment to the state constitution now being reviewed by the Federal judiciary
“either had a particularized interest in the initiative’s validity or the authority to assert the State’s
interest in the initiative’s validity, which
would enable them to defend the constitutionality of the initiative upon its
adoption or appeal a judgment invalidating the initiative, when the public
officials charged with that duty failed to do so.” [Italics are those of
Araujo]
As the majority opinion in Hollingsworth conceded, the California
Supreme Court agreed to decide this question posed by the Ninth Circuit in all
its elements. In addressing all of the charge, the state’s supreme court “answered
in the affirmative.” This means that the petitioners/proponents had the
particularized interest to defend the legality of their amendment; or, they had
the authority to stand in the place of the state officials to uphold the
amendment’s validity thereby enabling them “to defend the constitutionality of
the initiative upon its adoption or appeal a judgment invalidating the
initiative, when the public officials charged with that duty refused to do so.”
Notwithstanding this particular
interest of the petitioners/proponents and the authority granted to them by the
highest tribunal of California, the majority in Hollingsworth concluded that the petitioners/proponents did not
have standing before the Federal judiciary.
Put simply and with great respect
for the members of the majority, this conclusion of law is wrong.
The fact that the petitioner
proponents were the parties responsible for amending the state’s constitution
from the beginning to the end of the legal process distinguishes them from
simply being members of the general citizenry who also have an interest in the
defense of the state’s laws. Without the efforts of the petitioners/proponents,
there would have been no state law upon which the plaintiffs seeking invalidation
of the amendment could have complained. In short, there was a case and
controversy solely and directly attributable to the efforts of the petitioners/proponents.
A challenge to their efforts and only their efforts led to a personal and
tangible harm because the very fruit of the labor of the petitioners/proponents
was invalidated by the Federal courts who concluded that the law for which they,
the petitioners/proponents, were solely responsible for making into a reality
was invalid. Again, without their arduous toil, there would have been no
constitutional amendment to invalidate. In essence, the invalidation of their
work was both personal and tangible to them and constituted a real harm because
their effort and only their effort was annihilated by the strokes of several
judicial pens.
The majority in Hollingsworth asserted that parties to
the Federal review of this state constitutional amendment “did not contest that
the respondents [the opponents of Proposition 8] had Article III standing to do
so.” But neither did anyone object to the petitioners’/proponents’ status
regarding standing until the Ninth Circuit ordered the parties in Hollingsworth to address the standing
issue (see p. 3, slip opinion). However, the concerns of the Ninth Circuit were
addressed, as mentioned earlier, when the state supreme court answered in the
affirmative the status of the petitioners/proponents.
It is relevant to take note of what
the California Supreme Court said in responding to the Ninth Circuit. In
general it stated:
Thus, in an instance—like that
identified in the question submitted by the Ninth Circuit—in which the public
officials have totally declined to defend the initiative’s validity at all, we
conclude that, in light of the nature and purpose of the initiative process
embodied in article II, section 8 of the California Constitution (hereafter
article II, section 8) and the unique role of initiative proponents in the constitutional
initiative process as recognized by numerous provisions of the Elections Code,
it would clearly constitute an abuse of discretion for a court to deny the
official proponents of an initiative the opportunity to participate as formal
parties in the proceeding, either as interveners or as real parties in interest,
in order to assert the people’s and hence the state’s interest in the validity
of the measure and to appeal a judgment invalidating the measure. In other
words, because it is essential to the integrity of the initiative process
embodied in article II, section 8 that there be someone to assert the state’s
interest in an initiative’s validity on behalf of the people when the public
officials who normally assert that interest decline to do so, and because the
official proponents of an initiative (in light of their unique relationship to
the initiative measure under art. II, § 8 and the relevant provisions of the
Elec. Code) are the most obvious and logical persons to assert the state’s
interest in the initiative's validity on behalf of the voters who enacted the
measure, we conclude that California law authorizes the official proponents,
under such circumstances, to appear in the proceeding to assert the state’s
interest in the initiative’s validity and to appeal a judgment invalidating the
measure. Neither the Governor, the Attorney General, nor any other executive or
legislative official has the authority to veto or invalidate an initiative
measure that has been approved by the voters. It would exalt form over
substance to interpret California law in a manner that would permit these
public officials to indirectly achieve such a result by denying the official
initiative proponents the authority to step in to assert the state’s interest
in the validity of the measure or to appeal a lower court judgment invalidating
the measure when those public officials decline to assert that interest or to
appeal an adverse judgment.
More particularly with regard to
the petitioners/proponents in Hollingsworth,
the California Supreme Court further concluded that:
[W]e respond to the question posed
by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved
initiative measure, the official proponents of the initiative are authorized
under California law to appear and assert the state’s interest in the
initiative’s validity and to appeal a
judgment invalidating the measure when the public officials who ordinarily
defend the measure or appeal such a judgment decline to do so. [Italics
added]
Yet the majority in Hollingsworth concluded that the
petitioners/proponents did not have a “direct stake” in the Federal proceedings’
outcome in spite of their interest to protect their lawful efforts in seeking
and achieving a constitutional amendment for which they were solely responsible.
The majority contended that the
petitioners/proponents only raised a “generally available grievance about
government.” This is incorrect when one carefully examines all of the state
supreme court’s answer to the certified question regarding standing presented
by the Ninth Circuit.
The majority further contended that
the petitioners/proponents only had a “unique, special, and distinct role in
the initiative process.” But there is more to this role that needs to be considered. The
petitioners/proponents also satisfied the need for having the authority and
responsibilities for asserting California’s interest in the amendment’s
validity which, in the words of the California Supreme Court not further relied
upon by the majority, “enable[d] them [the petitioners/proponents] to defend
the constitutionality of the initiative… when the public officials charged with
that duty refused to do so.”
Hence, the petitioners/proponents
were not simply “concerned bystanders.” They were authorized by the State of
California to do what they did; therefore, they had standing to prosecute the
appeal since they were deputized to defend the state constitutional amendment
in view of the fact that the governor and attorney general, in violation of the
duties of their office, refused to do so. The Hollingsworth majority discussed at length the principles of Karcher v. May (1987) in which the
Supreme Court of the United States acknowledged that the New Jersey speaker of
the state house of representatives and the president of the state senate had
standing to vindicate the validity of a challenged state law when the state
attorney general declined to defend the law in a legal challenge. However, the Hollingsworth majority note that, also
under Karcher, the house speaker and
senate president lost their standing when they failed to be reelected to their
legislative leadership positions as speaker and president, respectively.
In the estimation of the Hollingsworth majority, the
petitioners/proponents of Proposition 8 are similarly situated to the former
legislative leaders in Karcher
because they only had the authority to assert the state’s interest in the initiative’s
validity. But, in fact, they had more: they also had the duty, per the ruling
of the state supreme court, to defend the constitutional amendment when the
governor and attorney general refused to do so. For some reason not well
explained if explained at all, the Hollingsworth
majority analogized the status of the petitioners/proponents to the status of
the New Jersey speaker of the house and president of the senate who lost their
standing when their lost their leadership offices. Such is not the case with
the petitioners/proponents who retained their right “to defend the
constitutionality” of the amendment “when the public officials charged with
that duty refused to do so.” This included the right to represent the state on
any appeal of lower court decisions. As the typical state officials charged
with this duty were not willing to defend the state’s “cognizable interest”
resident in the constitutional amendment, the state supreme court acknowledged
with great clarity that the petitioners/proponents were competent to defend the
state’s interests at all levels of judicial proceedings.
This is a substantive distinction
from the situation in Karcher. While
the Hollingsworth majority recognized
that California has the capacity “to vindicate [such] interests [by]
designat[ing] agents to represent it in Federal court,” it failed to see that
California had done precisely this in conferring this authority on the
petitioners/proponents to have standing so that a legally promulgated amendment
to the state’s constitution could be defended when those normally charged with
the responsibility refused to do so at any and all stages of judicial
proceedings.
The status of the
petitioners/proponents in Hollingsworth
is also different from that in the case of Arizonans
for Official English v. Arizona. (See slip opinion at p. 13) In Arizona, it was the Ninth Circuit by
itself that concluded that a non-government party could be substituted for the
governor when the governor chose not to appeal the case. In Hollingsworth, things are substantively
different: it was the Ninth Circuit that began the inquiry, but it was the decision issued by the state supreme
court in response to a certified question presented by the Federal
appellate court that carried the day. In Arizona,
there was no such declaration by competent legal authority determining the
status of the committee “to defend, in lieu of public officials, the
constitutionality of initiatives made law of” Arizona. In Hollingsworth, the majority disregarded the crucial fact that the
petitioners were authorized to act as agents of the state when they were given
the specific charge by the California Supreme Court to defend the constitutional
amendment and “to appeal any judgment invalidating” the amendment “when the
public officials charged with that duty refuse[d] to do so.”
Thus the interest of the
petitioners/proponents was not “a generalized one” as the Hollingsworth majority stated. Rather their interest was based on
an official and specific obligation imposed by the highest tribunal of the
State of California which has the authority to determine, as it has in the past,
who, if anyone, can defend the state’s constitution when the governor and
attorney general decided to abandon their constitutional duties. Furthermore,
the petitioners/proponents were not only acting under this charge, they were
also taking measures to protect their
initiative which would never have become a part of the law of California if they had not done what they did in securing their initiative’s passage and
incorporation into the laws of the state.
Analogies are important in the law
and one needs to be applied here: the petitioners/proponents of Proposition 8
were, in effect, serving as a legislative body operating under the laws of
California seeking to amend the state’s constitution. When their amendment became
of part of the law of the state, they also had been charged by the State of
California’s highest tribunal to defend that law and seek appeal of any
declaration that the law was invalid because those normally bearing this
responsibility abandoned their duty.
The grievance of the petitioners/proponents
was not a generalized one or simply that of a taxpayer’s complaint; rather, it
was the case and controversy that properly belonged to very group of persons
whose sole efforts enabled the Federal courts to declare the product of their
work unconstitutional.
Consequently, the
petitioners/proponents were aggrieved by the District Court and the Ninth
Circuit decisions on the merits. Their injury was personal and tangible, and
the lower Federal court decisions were adverse to their very clear and specific
activity that made an idea into law. If this does not satisfy the grounds for
standing, I doubt that much else could.
RJA sj
Sunday, June 23, 2013
12th Sunday—C
Zechariah 12:10-11, 13:1
Galatians 3:26-29
Luke 9:18-24
The question of human identity is as old as human history.
The fundamental question is: who am I; or, what am I? I began thinking about
this essential matter almost half a century ago. During my college years, my
sophomore English professor mandated that she would make gentlemen out of my
fellow classmates and I; her method was to have us select an American poet and
commit to memory ten poems of that poet. We would then recite from memory five
of the poems before our classmates—all who were anxious as I. I chose Emily
Dickinson—after all, her poems are rather short. But one of the poems I chose
and recited was: “I’m nobody…” In this poem, Dickinson—and for that matter,
anyone else—declares something about her (or his) identity and therefore
addresses the interlinked questions of: who and what am I?
Today, all of our readings tackle the issue of identity: the
prophet Zechariah addresses the identity of the Messiah who will be persecuted
before God’s people are saved from their sin and uncleanliness—for us Catholics
this is clearly our Lord, Jesus Christ. [As an aside, the reference to the
mourning of Hadadrimmon is unclear—there is some thought that H was a god of
antiquity, and something terrible happened at the Plain of Meggido, but no one
is sure what happened.] In his letter to the Galatian church, Saint Paul
reminds the faithful—including us—that our identity as Christians and as
disciples of the Lord materializes at our baptism when we put on Christ. In
Saint Luke’s Gospel, the question of identity is raised by Christ Himself when
He asks the disciples: “Who do the crowds say that I am?” Peter offers the
correct answer here and elsewhere in the synoptic Gospels (both Mark and
Matthew). Well, the question of identity is settled then—or is it?
For you see the question of identity as a disciple of Christ
surfaces time and again. Yesterday on June 22, we commemorate every year on the
22nd of June two great saints—Thomas More and John Cardinal Fisher.
In doing so, we must necessarily reflect on their identity. Like other martyrs,
a fundamental question is this: what made them “tick”; what made them open to
the ultimate sacrifice of giving their lives for that in which they believed?
More was Lord Chancellor of England; he had been a successful and rather
wealthy Oxford-educated lawyer; and he was a confidant—perhaps even friend—of
King Henry VIII. John Fisher was a Cambridge man who was ordained into the
priesthood in his early adulthood. He returned to his beloved university and
assisted (with the generous help of his friend, Lady Margaret Beaufort, the
paternal grandmother of King Henry) in the founding of several of the Cambridge
colleges and university professorships. Eventually, he became the chancellor of
Cambridge University. Fisher also became the bishop of Rochester at an early
age, and he was bishop of that diocese for over thirty years. He must have
anticipated what Pope Francis has been saying of late about bishops being
wedded to their dioceses without having ambitions to go to a larger, more
prosperous one, because Fisher never succumbed to leave his poor diocese for
another or others! I hasten to add that the diocese of Rochester in his time
was very poor in comparison with the dioceses over which Cardinal Wolsey
administered.
Both Fisher and More were very clear on who they were.
Indeed, they were prominent members of English society in the early sixteenth
century; they were highly educated and displayed their intelligence without
pride for they were humble before God and man. But there is abundant evidence
that at the heart of their respective identities was their unshakeable fidelity
to the Church. They were patriots first and last and devoted to their king;
but, their commitment to God and His holy Church took precedence. They labored
hard to be both good subjects of the king AND faithful sons of the Church.
However, the king tested time after time their fidelity to
the Church, and it was their fidelity that cost them their lives by depriving
them of their heads when Henry (with the help of Parliament, Thomas Cramner,
and Thomas Cromwell) decided that he would rid himself of his wife of over
twenty years, Queen Catherine, and establish himself as the “supreme” head of
the church in England. Sorry Saint Peter and your successors: move over—I’ve
now decided who is in charge of God’s work! Both Fisher and More knew that
Henry’s actions were wrong. The monarch’s self-authored divorce from Catherine
violated the law of God and the Church and his self-proclamation of Supreme
Head of the Church in England, moreover, contravened the Magna Carta. But both
defiances did not stop an intelligent man who was driven by worldly ways to
transform himself into a despot. More and Fisher knew that at the heart of the
Magna Carta was the several-times stated principle of the freedom of the
Church. This is essentially a vital element of the First Amendment of the
United States Constitution. This was and is a freedom not simply to be free
from the civil authority; it was and is also the freedom to do what is
essential to the Church’s mission in society without interference or pressure
from the state. The Church’s freedom was also the freedom of More and Fisher.
They understood well our Lord’s exhortation in Luke’s Gospel: in order to save
one’s eternal life, it may be necessary to sacrifice some of one’s life in the
City of Man. This is the nobility of self-denial; it is the affirmative
response of what Pope Francis urges us in not being “self-referential”; it is
the duty of one who desires to follow Christ by taking up one’s cross each day
in order to be faithful in following the Lord who showed us the true path by
His own sacrifice.
And this is where we come into to chronicle of identity—as
disciples and as a free people who believe in God and His Church. On this past
Thursday, the U.S. bishops announced the beginning of the second annual
Fortnight of Freedom. It will conclude on Independence Day. Freedom and its
inseparable companion, responsibility to be virtuous citizens of the City of
God and the City of Man, are at the core of our individual and corporate
identities of American citizens and as members of the Catholic Church. Our
heritage is founded on the duty of citizens and their freedom to be true to our
identity. We are not the servants or subjects of the realm, as were More and
Fisher. Rather, we are participants in a realm who are served by a state whose
sole ambition is and must be to attend and protect its people; not
to be served by them against their will. The state is not the common good;
rather it exists to serve and safeguard the common good—a vital element of our
faith. Like More and Fisher, we are disciples of the Lord Jesus Christ and
members of His holy Church. The freedom from state interference and for
following Christ is the same freedom possessed and exercised by the same saints
whom we commemorated yesterday.
But this freedom is sometimes eclipsed by the ambition of
those who do not share our identity or who have abandoned this essential
element of their identity. So what can we do as Americans and as Catholics who
cherish our freedom as Americans and simultaneously practice it as Catholics—as
I have briefly explained freedom?
Perhaps like More and Fisher, who understood what Saint Paul
said so many years ago to Timothy: we know in whom we have believed! May this
declaration be a part of our identity and our heritage as a free and sovereign
people. May it also be a part of our prayer not only for today but for all the
days of our lives! For prayer is the distinguishing mark of the good citizen
who is also the faithful disciple. This is who we are as individuals and as
members of the Church, the People of God. We have put on Christ; may no one
remove Him regardless of their intention otherwise.
Amen.
