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Supreme Court Gay Marriage Decision – No Standing

Supreme Court Gay Marriage Decision – No Standing

Update — The death of the ballot initiative movement as Court gives de facto veto power to government officials who want to lose a case.

Via ScotusBlog live blog:

10:26 Amy Howe: We have Perry. By the Chief. The petitioners did not have standing to appeal the district court order.

10:28 Amy Howe: From the opinion: 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.

10:40 Amy Howe: Here’s a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case….

In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decisionholding that state law authorizes an enacted initiative’sproponents to defend the law if and when the State’s usuallegal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.

WAJ comments: Not a decision on traditional ideological lines:

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined.

Probably the most confusing outcome as to what happens next. The prevailing view is that Prop. 8 is invalid in California. Understand this was a result of California officials refusing to defend the law on appeal. Regardless of the merits underlying the suit, the Court just validated the ability of public officials to deprive federal courts of jurisdiction by virtue of the officials failure to fulfill their public duties. What makes it even more confusing is that if the proponents of Prop 8 had no standing to defend the law on appeal, why would they have standing even in the District Court. If not standing, then there was not an actual case and controversy, and Judge Walker had no authority to rule. Here’s ScotusBlog’s explanation:

10:59 Comment From Chris If the Federal Courts don’t have jurisdiction over the Prop 8 case, then how can the Federal District Court decision finding Prop 8 unconstitutional stand? From Kevin: Good question. The reason is because the Supreme Court only found no standing by the Prop 8 opponents to appeal. It did not question the standing of the Prop. challengers to challenge the law. So the district court had jurisdiction; the court of appeals did not.

That’s an inadequate answer to me, and something I’ll explore further with time.

Update — On the effect of the standing issue, here’s the best I can figure out as to why the District Court Order survives. When the case was filed, the Governor and other state officials were named parties. They refused to defend the law, and the proponents of Prop. 8 were allowed to intervene in the case for the purpose of presenting a defense. So the case continued with the state officials as parties even though they weren’t active in the case. But once the District Court rules, someone had to take the affirmative step of appealing. The state officials refused to do that, so the proponents took the appeal. It was that step which the Supreme Court rejected, the taking of the appeal by someone who was not a named party and did not have “standing” thereby depriving the appellate courts of jurisdiction. Thus, the state officials achieved the result they wanted not so much by refusing to defend Prop. 8, but by refusing to take an appeal. [Note, this paragraph modified after initially publishing.]

Here’s how Justice Roberts, writing for the majority, explained the change from trial to appeal (at 7):

After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury toredress—they had won—and the state officials chose not to appeal.

The only individuals who sought to appeal that orderwere petitioners, who had intervened in the DistrictCourt. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him ina “personal and individual way.” Defenders of Wildlife, supra, at 560, n. 1. He must possess a “direct stake in the outcome” of the case. Arizonans for Official English, supra, at 64 (internal quotation marks omitted). 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.

The result is the same. State officials exercised a veto of the electorate by refusing to take an appeal and thereby depriving the appeals courts of jurisdiction.

Justice Kennedy, in a dissent, noted that the Court’s analysis essentially vitiates the proposition system in California and elsewhere where voters seek to override government officials. If the officials simply can refuse to defend a proposition in court, then the proposition system becomes toothless:

In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. See M. Waters, Initiative and Referendum Almanac 12 (2003). In my sub- mission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court….

The California Supreme Court has determined that thispurpose is undermined if the very officials the initiativeprocess seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding…. Giving theGovernor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure…. As a consequence, California finds it necessary to vest the re- sponsibility and right to defend a voter-approved initiativein the initiative’s proponents when the State Executive declines to do so….

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 isto lose the case….

In the end, what the Court fails to grasp or accept is thebasic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.

Supreme Court Gay Marriage Decision

[Sorry this post got messed up in the too-fast editing/typing process, I think I’ve restored everything.]


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theduchessofkitty | June 26, 2013 at 10:44 am

Now, I officially don’t get it.

Has the Supreme Court really decided that State officals can ignore what laws they want, with regards to the ballot initative process?

    Ragspierre in reply to ironghost. | June 26, 2013 at 11:02 am

    The short answer is Yes.

    The longer answer is a LOT more complex. The Supremes are essentially saying this is an unprecedented situation, that they are not going to set a new precedent to address by giving individuals standing.

    In some respects, I think this is right. The voters of Kuhlifornia permitted this, and are permitting it still.

    Is what the governor did anti-democratic? Sure. Is it a terrible, awful, really BAD thing the autocrats in that poor, benighted state are doing? Sure.

    Let. It. Burn.

      janitor in reply to Ragspierre. | June 26, 2013 at 12:48 pm

      In light of the DOMA decision, though, it appears that government officials effectively can make state law contrary to the will of the people.

      With regard to DOMA, the natural next consequence is that where the federal government offers benefits, states can’t create discriminatory laws that entitle some, but not others, to those benefits. (That doesn’t even reach de facto discrimination in federal benefits among other people who are not married based on their status. There is no longer a rationale for it.)

      In order to prevent the coming chaos, therefore, all federal recognition of difference between people based on this “status” and all federal spousal benefits must be eliminated. No immigration special rules. No pension special rules. No tax return special rules (which also will require revisiting joint return rules and the definition of “income” because of Supreme Court mistake in 1931). Etc.

        Ragspierre in reply to janitor. | June 26, 2013 at 1:12 pm

        I could be wrong here…but the DOMA decision did not make homosexual marriage a right.

        It is still a matter of state law.

    GrumpyOne in reply to ironghost. | June 26, 2013 at 1:51 pm

    Yup. We’re losing control of those who are supposed to act in the interest of the majority.

    So much for freedom…

shortwave8669 | June 26, 2013 at 10:52 am

So if the voters pass a state constitutional amendment that is PC or isn’t “politician approved” that amendment cannot be enforced. So constitutional rights are subject to the pleasure of the politicians who are to be regulated??

    theduchessofkitty in reply to shortwave8669. | June 26, 2013 at 10:59 am

    That’s the reason why I don’t get it. And this SCOTUS gave them permission!

    If a government can be free to ignore plebiscite results, then there’s no “consent of the governed” here.

      Brainstorming, here, but the supporters of Prop 8 should have standing against the State of California for refusing to enforce their constitution (according to Roberts opinion, that wasn’t contested by either party) and perhaps for refusal to defend it against the federal constitutional claims. Maybe an Equal Protection or Due Process theory that the state government is violating their rights by selective enforcement of laws? I’d say make a claim under the state constitution as well, but regardless of available theory there still stuck with the superior USDC order finding Prop 8 unconstitutional with no one with standing to contest. Citizens of California essentially denied right of appeal by State’s refusal to defend their constitution.
      They should have made a third party claim and joined the State of California.

    Uncle Samuel in reply to shortwave8669. | June 26, 2013 at 11:40 am

    Here’s a peek at the future of our nation as decreed by the progressive elites:

shortwave8669 | June 26, 2013 at 10:54 am

or rather a NON-politically correct amendment doesn’t need to be enforced if politicians won’t get involved???



Folks, this is getting really, really old. Roberts. Appointed by George W Bush. Roberts shoves a flaccid stiffy up the arse of American freedom.


    snopercod in reply to [email protected]. | June 26, 2013 at 2:50 pm

    I’m pretty sure I understand why Roberts is making these weird decisions. Clearly the NSA has compromising video of a naked Justice Roberts chained to a table while Justice Ginsburg in leathers is whipping him and demanding obedience.

From a layman’s perspective, will this decision be a harbinger of state legislatures going back to shore up the duty of the executive to enforce (or defend), and would there be a slippery slope with that kind of legislation of antiquated and forgotten laws coming back into force?

Henry Hawkins | June 26, 2013 at 11:19 am

This is a purely theoretical question, mind you, but does this mean that if a man wanted to marry his favorite sheep it doesn’t have to be a female sheep?

    It means that Proggs will set out to make traditional male/female marriage a discriminatory hate crime.

    Charles Beaumont wrote a prescient story on this very subject titled “The Crooked Man”

The Supremes are right – the CA constitution has been violated and it’s up to Californians to make the violators suffer the consequences. If elected officials refuse to obey the constitution and the people won’t hold them accountable for it, well who’s fault is that?

Impeach them or un-elect them. Not possible? Why not?

Maybe there’s no expectation that Dems will obey the law?

They’d raise a stink, of course, if Repubs did the same.

This is what it has come to, folks. Only one party has to play by the rules.

    Ragspierre in reply to qbookscpa. | June 26, 2013 at 11:46 am

    Yep. One thing the Founders clearly understood: they were giving the people the means, via the Constitution, to effect their rights to self-government, while also providing an effective central government.

    Nobody ever said the people had no right to screw it up. That is part of self-government…as is eating the consequences of screwing up.

      Actually, in this Nation of lawlessness SOME people do afford the luxury of having the right to screw-up without ever having to eat the consequences.

      These people are called Democrats.

Uncle Samuel | June 26, 2013 at 11:42 am

This is what the political progressive elites want our society to be:

Sick minds, sick policies.

[…] UPDATE:  Supreme Court | Gay Marriage | Reaction | Prop 8 […]

No surprise here. Gay “marriage” is rarely implemented by a majority vote of “we the people.” It is almost always implemented by courts and elected officials.

The introductory paragraphs of Kennedy’s dissent are right to the point. California’s initiative process has been gutted by the court for failure to say “mother may I”

I haven’t read the opinion yet, but based on what I (think I) understand of it, I can’t believe SCOTUS held as it did in the California case. The standing doctrine is meant (at least in part) to ensure that the court hears the best from both sides of a dispute–which would undeniably be the proponents of Prop. 8 in this case, and also undeniably NOT be the government of California. This opinion just seems to completely short-circuit the initiative process. Why bother trying to bypass the normal legislative procedures to enact a law you want when you know it can be eliminated by the government refusing to defend it?

With that off my chest, I do have a semantic critique of the title: I think it’s important that we refer to “same-sex” marriage, and not “gay” marriage. Homosexuals aren’t prohibited from marrying (in states that prohibit same-sex marriage)–they enjoy the exact same rights that heterosexuals enjoy (a man can marry a woman and a woman can marry a man, and the sexual orientation of the participants isn’t relevant). “Gay” marriage implies that what is distinctive about that marriage is the inclusion of at least one homosexual in the marriage, whereas “same-sex” marriage makes clear that what is distinctive is the sex of the participants (be they gay or straight). This may seem a minor point, but remember how important the words we use are in framing a debate (which reminds me–did anybody else see that NYT editorial yesterday which stated that the “conservative” justices (Kennedy’s a conservative?) voted to strike down S. 4 of the VRA, whereas the “moderate liberal” justices voted to uphold it?).

Takeittothelimit | June 26, 2013 at 12:13 pm

If the conservatives and Christians wanted to shut this down ASAP they need to be lined up at the courthouses today applying for marriage licenses for their sisters, brothers, mothers, fathers, friends, entire congregations,and so on and then declaring someone head of that household, and getting every deduction they can. We could break the IRS and make the government scramble to reinstate marriage. Cause who pays more taxes the gay minority or the rest of us.
As far as I can see if marriage means nothing regarding the sex of the individuals it certainly isn’t limited to two individuals, nor since this is purely about taxes and “love” does it matter what if anything is going on in a bedroom. Consanguinity? Piffle what kind of prude are you? Incest?
Who cares? I proposed to my mom and dad today and my daughter and son in law, looking forward to that fat refund!!!!! I went from filing single to head of a very large tax deductable household! Hurrah for unintended consequences!!!!

So if Prop 8 supporters had won in the Fed. Dist. Ct, would they have standing to defend an appeal?

    Ragspierre in reply to myiq2xu. | June 26, 2013 at 1:16 pm

    I’d say no. Standing exists or doesn’t at the court of first instance.

    And, like jurisdiction (of which it is a sub-set), it can be challenged at any point, and cannot ever be waived.

Any state constitution with a ballot referendum provision must be amended to provide the following:

“1. It shall be misconduct in office, grounds for immediate removal from office, and a felony punishable by not less than five years in prison for the Governor or Attorney General of this state to fail to vigorously defend the validity, including the constitutionality, of any amendment to the constitution or other law enacted under the authority the people have retained to amend their constitution and to enact laws.”

Perhaps it is time for conservatives demanded to know the details of how Roberts adopted his kids.

[…] SCOTUS #DOMA Decision: Supreme Court Gay Marriage Decision – No Standing […]

Juba Doobai! | June 26, 2013 at 6:15 pm

Obama, the little tin pot ground god Obama, promises us “I [your lord god Obama]wont force churches to conduct [homosexual] weddings”

Of course not.

    theduchessofkitty in reply to Juba Doobai!. | June 26, 2013 at 6:21 pm

    Let’s be serious, everybody: does anyone in this country believe a single word of what he says? He’s a slithering snake!

This opens the door to the kinds of shenanigans the EPA engages in. To wit, when the EPA wants to do what Congress forbids or gives it no power to do, it asks a friendly litigant to sue it, then settles by signing a consent decree ordering whatever the EPA wants. I expect the same thing to start happening to any initiative California’s ruling elites don’t like.

I’ve been trying to figure out this ruling, from a layperson’s viewpoint.

1. Kamala Harris (California AG) is paid to represent California, but chooses not to do so. She still takes the money, though. I’m not sure why it’s considered ethical for a lawyer to take money and not represent the client, but that’s what’s happening.

2. Same-sex marriage in California is completely a product of the courts; the legislature never passed it, and twice the people of California voted against it. By ruling the way they did, SCOTUS effectively struck down the 1st Amendment (or at least the part about the right of the people to petition the government).

[…] the Supreme Court have given the entrenched interests de facto pocket veto.  As William Jacobson pointed out at Legal […]

Not just initiatives, but any law that a Governor and/or State Atty General chooses not to defend–essentially, Executive Branch nulification at the State level.

And especially so if there is no direct, personal harm to any potential litigant who might disagree and want to defend said law.

Not so hypothetical–A State law clearly and inarguably imposes a tax or fee on a certain industry. New administration chooses not to enforce. No way to make them do it, no one has standing as the effect on any individual is at most shifting a few pennies of tax burden. Just a little potential for mischief here?

RE my previous comment, what about Article IV Section 4 of the US Constitution? Like the 9th and 10th Amendments, just window dressing?

Uncle Samuel | June 27, 2013 at 8:05 am

Justice Alito, in his dissent, denounces our “arrogant legal culture”

Quite so.

Obama is the most arrogant of all. Gay pride, black pride, Islamic, political elitist pride – he’s got it all.

Pride goeth before a fall.

[…] that it upholds Proposition 8.  I’m not a legal expert, so I’ll refer you sites like Legal Insurrection for more information.  The Digital Hairshirt (herself a lawyer) will also be writing a lengthy post on it (or so I was […]

[…] Supreme Court Gay Marriage Decision – No Standing […]