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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