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SCOTUS avoids 14th Amendment analysis on Prop 8 through Standing Analysis, Still a Win?

In the second of a pair of same-sex marriage rights cases, the Supreme Court of the United States refused to deal with the substantive issue declaring a lack of standing instead.  In deciding the case on standing the Court avoided addressing the constitutionality of denying same-sex couples the right to marry.  However, in deciding the issue on standing the majority decision can be read to condone the actions of the public officials who refused to defend Prop 8.

Known as the Prop 8 case (a/k/a Prop H8), everything you need to know about Hollingsworth v. Perry is summarized below:

Prior to reaching SCOTUS here is what happened:

  • California Supreme Court follow Massachusetts in declaring denial of same-sex marriages in violation of the California Constitution.
  • California voters then pass Proposition 8, amending the California Constitution to define marriage for opposite sex couples only.
  • Same-sex couples sued California's governor and state and local officials claiming Prop 8 is unconstitutional under the U.S. Constitution's 14th Amendment, Due Process and Equal Protection Clause.
  • California officials refused to defend the law, and the Federal District Court allowed the Petitioners of Prop 8 to defend it.
  • The District Court, after a bench trial, declared Prop 8 unconstitutional.
  • Petitioners appealed to the Ninth Circuit, which certified a question to the California Supreme Court whether petitioners could defend the suit.  The California Supreme Court answered yes, that the petitioners do have standing to defend it.
  • The Ninth Circuit then affirmed the unconstitutionality ruling of the District Court.

On March 26, 2013, the case was argued in front of the Supreme Court of the United States.

On June 26, 2013, SCOTUS held that petitioners did not have standing to appeal the District Court's order.  This means that the District Court ruling stands and Prop 8 is unconstitutional in California, but does not create any controlling precedent for other states.

Here are some highlights from the majority decision written by Chief Justice Roberts:

"The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry."

"[P]etitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause “prohibits the State of California from defining marriage as the union of a man and a woman.”

"Respondents, same-sex couples who wish to marry, viewthe issue in somewhat different terms: For them, it is whether California—having previously recognized theright of same-sex couples to marry—may reverse that decision through a referendum."

"Federal courts have authority under the Constitution toanswer such questions only if necessary to do so in the course of deciding an actual 'case' or 'controversy.'... This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives."

"In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm."

"Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the DistrictCourt order reversed was to vindicate the constitutional validity of a generally applicable California law."

"We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing."

The Court relied heavily on Diamond v. Charles a case in which "we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State’s abortion law.... because Diamond was not able to assert an injury in fact of his own."

The Petitioners argument that California authorized them to act as agents of the state to appeal the law failed as well because "the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency §1.01, Comment f (2005) (hereinafter Restatement). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them.... Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such."

And perhaps the best point from the dissent written by Justice Kennedy:

"There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed."

Conclusion:  The standing argument is still significant, even if you were hoping for something more substantive.

Justice Kennedy rightfully points out that this is an unusual situation where elected officials refuse to defend vigorously a law enacted by the same voters that elected them.  This civil disobedience of elected officials due presumably to moral objection to a Proposition passed by majority vote is an interesting sub-plot of the Prop 8 story which perhaps has not received enough attention.

Do voters have a right to require their elected officials, by majority vote, to enforce a law those officials find morally objectionable?  Or is that act of civil disobedience an appropriate check on a democratic system which at times is unbalanced because of majority rule.


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