What happened in Perry and what’s going to happen to Prop 8

June 27, 2013

Supreme Court LGBTRight after the much anticipated U.S. v. Windsor ruling, the Supreme Court announced its decision in Hollingsworth v. Perry.

Windsor held that Section 3 of the Defense of Marriage Act (DOMA), which limits the definition of “marriage” for the purposes of federal law to only heterosexual couples, was unconstitutional (more on that ruling here).

Perry – the other case before the Supreme Court this term dealing with same-sex marriage – was a challenge to the constitutionality of California’s Proposition 8, a 2008 voter-passed ballot initiative that made same-sex marriage illegal once again after the state supreme court legalized in a ruling earlier that year.

The ruling in Windsor was a landmark one: by a vote of five to four, the Court held that Section 3 of DOMA was, indeed, unconstitutional, in that it violated the Equal Protection and Due Process Clauses of the Fifth Amendment (for more on Windsor, check out the post referenced above).

Although Perry’s vote was also five to four, that decision’s holding wasn’t quite as exciting: Prop 8’s proponents did not have standing to appeal the original district court ruling.

Considering how the question before the Court was originally whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from limiting marriage to heterosexual couples only, it certain seems like a bit of a disappointment that the case was remanded on jurisdictional grounds.

Regardless, the Court’s ruling on standing, boring though it may be, is actually brand new precedent.

In addition, the decision carries with it some very interesting implications that will arise from the procedural course the case has yet to take.

First, on the legal issues behind the standing decision, some background may be required.

After Prop 8 was enacted, same-sex couples who wish to marry filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The challengers prevailed at the district court level, but the original named defendants – California’s Governor and other state and local officials responsible for enforcing California’s marriage laws – declined to further defend the law.

The original proponents of Proposition 8 intervened on behalf of the law’s defense, and appealed the district court’s decision.

The court of appeals asked the California Supreme Court whether the proponents had standing.  After the state high court answered the question in the affirmative, the federal court of appeals heard the case and affirmed the district court.  And that’s how we got to the Supreme Court.

The Supreme Court found that the proponents lacked standing because their “only interest was to vindicate the constitutional validity of a generally applicable California law.”

The majority found this to be nothing more than a “generalized grievance,” which the Court has “repeatedly held” is insufficient to confer standing.

There are two significant points in this decision on jurisdiction (aside from it being the first time that the Court has made such a ruling on the issue).

First, in the 27 states such as California that allow ballot measures by public initiative (wherein a proposed law can be submitted to the electorate for approval after a petition for such receives a sufficient number of signatures), the Court’s Perry ruling gives the state executive government considerable power over the success of a proposed law that was entered onto a state ballot by public initiative.

In other words, if a state doesn’t like a ballot initiative that was passed and became law, it can simply refuse to defend the law in court (should the law get challenged), and no one else can step up to defend it.

The other significant point is how the vote came down:  the majority was written by Chief Justice Roberts, and was joined by Justices Scalia, Ginsburg, Breyer, and Kagan.  The dissent was written by Justice Kennedy and joined by Justices Thomas, Alito, and Sotomayor.

Not exactly along ideological lines, is it?

A more in depth look at the exact reasons for this unique alignment will appear in a forthcoming post.

But a look at the arguments of both the majority and the dissent show that, where the majority wrote about how federal jurisdiction could not be created by a state court or a state government (closely mirroring the Chief Justice’s comments during oral argument), the dissent waxed on about respect for the state initiative system and its “basic premise” that “the essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”

Interestingly, neither side discussed the consequence of the majority’s holding: that the original district court’s decision will be left standing, which would require the suit’s original named defendants – the governor and attorney general –to order county clerks in Alameda and Los Angeles Counties to start issuing marriage licenses for same-sex couples seeking them.

Considering the California government’s views on Prop 8 and same-sex marriage, the governor and attorney general will very likely issue the order to all county clerks nationwide to start issuing same-sex marriage licenses.

In short, the Perry decision re-legalized same-sex marriage in California.

Again, though, despite the significance of this outcome, neither side of the Perry ruling even so much as mentioned this.

For reasons that I will get into in that previously mentioned forthcoming post, however, this silence does not mean that the justices were unaware of the consequences of their decision; they very likely were.

In the end, Perry will be cited exclusively in legal documents for its jurisdictional precedential value.

Nevertheless, the decision will be remembered by both the general populace and history for its causing same-sex marriage to be legal again in the nation’s most populous state.