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Unpublished Paper
"Standing" in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry
ExpressO (2013)
  • Glenn Koppel
Abstract “Standing” in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry In Hollingsworth v. Perry, one of the two same-sex marriage cases decided by the Supreme Court in 2013, the Court declined to address the constitutionality of California’s Proposition 8, finding that the initiative proponents lacked standing to appeal the district court’s judgment declaring the proposition unconstitutional and enjoining its enforcement. Since the State’s Governor and Attorney General declined to appeal, the proponents sought to assert the State’s particularized interest in the proposition’s validity. State law, as interpreted by the California Supreme Court, grants authority to official proponents to defend an initiative’s validity when state officials refuse to do so. The federal standing issue in Hollingsworth turned, therefore, on whether California law governed the authority of initiative proponents to represent the State’s interest in federal court. Little attention has been paid to the question whether state law may have some independent influence on federal standing, until a closely-divided Supreme Court confronted that issue in Hollingsworth. The federal standing issue turned on whether, in Erie terms, the scope of Article III standing doctrine is broad enough to encompass, and therefore govern, the question of the initiative proponents’ authority to assert the State’s interest on appeal in federal court and, thereby, preempt state law on this question. Or does sensitivity to California’s substantive interest in the integrity of its initiative process counsel a narrow construction that leaves room for the application of state law? The majority and dissenting opinions clashed over the appropriate weight to be accorded federal and state interests in choice-of-law, reminiscent of the Erie issues that closely divided the Court in Shady Grove Orthopedic Associates (2010) and Gasperini v. Center for Humanities, Inc. (1996). Though Erie was never explicitly mentioned, the conflicting choice-of-law judgments reflected in the Hollingsworth opinions were, nevertheless, made in the shadow of Erie. This article provides a unique insight into the Court’s divergent views on the federal standing issue in Hollingsworth by viewing the Justices’ conflicting positions through the lens of the Court’s Erie jurisprudence which, at its core, focuses on calibrating the proper judicial balance of power in a given case between conflicting federal and state interests in determining vertical choice-of-law issues. Hollingsworth is uniquely positioned at the intersection of federal standing principles and Erie doctrine, providing a rare opportunity to explore the relationship between these two doctrines and their competing balance of power concerns inherent in our federal system. Standing, as a requirement for the limited exercise of federal judicial power under Article III, addresses the horizontal balance of power among the three branches of the federal government. Erie addresses the vertical balance of power between federal and state courts. Standing is a malleable doctrine that federal courts have employed to avoid ruling – prematurely in the case of same-sex marriage – on the merits of a controversial issue. This article concludes that, whether or not the Court’s broad construction of federal standing doctrine – ostensibly, to avoid harming the federal interest in the horizontal balance of power among the three branches of the federal government – masked a behind-the-scenes decision by the Court’s majority to avoid ruling on the merits, the Court’s Opinion upsets the vertical balance of power that lies at the heart of Erie jurisprudence.
  • Standing,
  • Erie,
  • Federalism,
  • Hollingsworth v. Perry
Publication Date
August 28, 2013
Citation Information
Glenn Koppel. ""Standing" in the Shadow of Erie: Federalism in the Balance in Hollingsworth v. Perry" ExpressO (2013)
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