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Analysis: Supreme Court Rules Prop 8 Proponents Lack Standing, Restores Marriage Equality to California

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In a narrow yet major victory for marriage equality, the Supreme Court ruled today that the proponents of Proposition 8 did not have standing to defend the law in court, paving the way for equal marriage rights to return to California. The ruling focused specifically on issues of standing but will allow a lower court ruling that invalidated Prop 8 as unconstitutional to stand as the final say on the issue.

First, the ruling itself, which was written by Chief Justice John Roberts and joined by an unusual coalition of Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. As the chief justice noted early in his opinion:

Federal courts have authority under the Constitution to answer such questions [of constitutionality] only if necessary to do so in the course of deciding an actual "case" or "controversy." ... It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.

To briefly rehash the history of the Prop 8 challenge, the original lawsuit was brought by two same-sex couples who had been denied marriage licenses by their county clerks. When California's governor and attorney general declined to defend Prop 8 in court, the measure's official ballot proponents stepped in to defend the law. The two couples succeeded in winning a district court ruling that Prop 8 was unconstitutional, and the proponents appealed to the Ninth Circuit, where they lost, and then to the Supreme Court.

The central question in today's Prop 8 decision is whether or not the proponents had the right -- known technically as Article III standing -- to defend Prop 8 in federal court. In order to do so, the chief justice wrote, the proponents would have had to assert "a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision." As he wrote in his opinion today, Roberts determined them unable to do so:

The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything.... Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.

In court, the Prop 8 proponents argued that even if they did not have an individual, particularized interest in defending the law, they were authorized to represent California's own interest in the constitutionality of the measure, relying in large part on a 2011 California Supreme Court ruling that staked out this argument.

Roberts disagreed with that holding, citing the 1991 holding in Powers v. Ohio that "a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." He distinguished the Prop 8 litigation from a case from New Jersey called Karcher v. May in which New Jersey state legislators were permitted to defend a law after the state's attorney general refused to do so, writing that the Supreme Court specifically ruled that those legislators lost the right to defend the law after they left office.

Roberts also cited a passage from the Supreme Court's ruling in Arizonans for Official English to refute the proponents' arguments based on the California Supreme Court ruling, writing that the state court's decision answered only whether the proponents had "the authority to assert the State's interest in the initiative's validity" and did not authorize them to act "'as agents of the people' of California."

Dissenting from Chief Justice Roberts's majority ruling, Justice Anthony Kennedy -- joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor -- repeatedly asserted that the Supreme Court should have accepted the California Supreme Court's arguments and granted standing to the proponents:

[T]he State Supreme Court's definition of proponents' powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.

In his conclusion, Chief Justice Roberts wrote that the Supreme Court would not change its previous holdings on ballot proponents' standing and sent the Prop 8 case back to the lower courts:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.



Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

This last paragraph of the ruling means that the Ninth Circuit's decision invalidating Prop 8 is essentially nullified, since the proponents did not have standing to appeal to the circuit court in the first place. Judge Vaughn Walker's decision, then, is now the final ruling on the law and will apply only to California.

Some have argued that the Supreme Court's decision should only affect the two couples who filed suit against Prop 8, or the two counties in which the couples reside, because the suit wasn't brought on behalf of California's same-sex couples as a class. This argument has little merit: Judge Walker's district court injunction was worded to apply to California's governor and attorney general, as well as all the state officials under their authority.

In a statement following the ruling, California Gov. Jerry Brown announced in plain terms that "the district court's injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it." This determination was based on a legal opinion from the office of California Attorney General Kamala Harris.

There is a 25-day window during which a petition for rehearing can be filed with the Supreme Court, although such petitions are rarely granted. After that time, the Supreme Court's opinion will become official, and its instruction to the Ninth Circuit to lift its stay against Judge Walker's injunction will be in effect. The Ninth Circuit could choose on its own accord to lift the stay before that 25-day window has shut, which would allow same-sex couples in California to wed even sooner. In either case, marriages should return to California within a month's time.

This piece originally appeared on EqualityOnTrial.com.