While the landmark decision in United States v. Windsor started last Wednesday’s Supreme Court Session–the very last session of the term–off with a bang, many felt that the opinion in Hollingsworth v. Perry, the case challenging California’s Proposition 8 (“Prop 8″), ended it with a whimper.  Rather than decide the case on the merits and rule whether laws prohibiting same sex couples from marrying violate the Equal Protection Clause of the Fourteenth Amendment, the court was seen to have “punted” on the issue using arcane procedural grounds.  The upshot of the court’s decision may be great for same-sex couples in California desiring marriage rights, but it presents a troubling issue for the democratic process around the country.

Factual & Procedural Background

In 2000, California passed Proposition 22, which was a state statute banning same-sex marriage.  In 2008, the California Supreme Court ruled in In re Marriage Cases that the California Constitution recognized the rights of same-sex couples to marry, invalidating Proposition 22.  In response, the California voters passed Prop 8, a ballot initiative led by ProtectMarriage.com, which identically copied the language from Proposition 22,  reading “Only marriage between a man and a woman is valid or recognized in California.”    As an amendment–not a statute–it superseded the California Supreme Court’s decision in In re Marriage Cases.

The American Foundation for Equal Rights (“AFER”), on behalf of two same-sex couples who had been denied marriage licenses, filed suit in federal court alleging that the California Constitution, by prohibiting same-sex marriage, violated the Due Process and Equal Protection clauses of the Fourteenth Amendment.  The defendants, originally the Attorney General and Governor of California, declined to defend Prop 8 (though they continued to enforce it).  Because state officials refused to defend the lawsuit,  ProtectMarriage.com, led by Dennis Hollingsworth, was allowed to intervene as defendants in the federal suit.

Chief Judge Vaughn Walker of the Northern District of California ruled in favor of the plaintiffs, holding that the California Constitution as amended by Prop 8 did indeed violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment, thus invalidating prop 8.  The defendants appealed to the Ninth Circuit Court of Appeals, which stayed the district court ruling, effectively prohibiting same-sex marriage in California until the appeal was resolved.

Because the defendants were only interveners, who were neither officials of California, nor had a fiduciary duty to defend the proposition to the voters of California, through election or appointment, a major question for the Circuit Court was whether Hollingsworth and ProtectMarriage.com had standing to bring the appeal.  The Ninth Circuit asked the Supreme Court of California whether, under California law,

[T]he official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiatives validity which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011).  The California Supreme Court held the official proponents had standing to appeal.  The Ninth Circuit accepted this holding and ended in affirming the district court: Prop 8 was unconstitutional. When the U.S. Supreme Court granted certiorari to hear the appeal, it asked the parties to brief and prepare arguments to resolve whether the California Supreme Court was correct.

Supreme Court Holding

Article III, §2 of the U.S. Constitution demands the court to decide actual “cases” and “controversies.”  The Supreme Court interprets this to mean that the parties involved have some actual injury or direct interest to redress, or be an agent for the injured party.  For a party to have standing to bring appeal, the district court ruling must have directly affected that party in some way.

The Supreme Court found that, despite ProtectMarriage.com’s professed interest in limiting marriage to heterosexual couples, they did not have the concrete, particularized interest distinct from that of any other California citizen required to litigate the matter on appeal.  Nor were they agents or representatives of California’s citizens.  In effect, the Ninth Circuit should not have heard the case in the first place, thus the Supreme Court did not have an “actual case or controversy” concerning same-sex marriage before them.  The Supreme Court thus would not let itself reach the question as to whether restrictions on gay marriage violate the Fourteenth Amendment.  ”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.”  Hollingsworth v. Perry, 570 U.S. ____ (2013) (Slip op. 17).  The Supreme Court remanded the case to the Ninth Circuit with instructions to dismiss the appeal.  The District Court’s order declaring Prop 8 amendment unconstitutional remains good law.

Effect for California

The district court’s order prohibits California officials from enforcing the Prop 8 language in the constitution.  Yet, there is some issue as to whether the district court ruling requires California to dispense licenses to all same-sex couples, or simply the plaintiffs in this case, which may spur further litigation.  The Governor of California has, however, ordered all counties to grant licenses to same-sex couples seeking them once the Ninth Circuit has lifted the stay on the district court’s order, which could take several weeks.  The general effect is generally as if Prop 8 was never passed and same-sex couples can get married just as they did prior to its passage.  Moreover, the decision in Windsor v. United States means that same-sex marriages in California will be recognized by the federal government.

What is Next

Federal district court opinions, such as the one striking the Prop 8 language have little force as precedent in other jurisdictions, thus the constitutionality on state prohibitions of same-sex marriage is still questionable.

Perhaps the more nettlesome question in this case is what happens when state officials refuse to defend lawfully and democratically passed laws in court.  Though in this case, the law in question was detrimental to the LGBT/Q community, it’s not unthinkable that states could refuse to enforce laws beneficial to that same community, or even lawfully passed tax or welfare initiatives.  Further, had California defended the law, which it continued to enforce, in this case, the Supreme Court may have reached the merits and we would have a more certain, potentially positive, ruling on same-sex marriage.

Whatever the implications, this ruling allows same-sex marriage in the largest state in the US.  This is certainly a breakthrough in the continuing national debate on this issue.  Though perhaps a whimper, it will certainly be appreciated by same sex couples in California.

Todd Noelle is a rising 2L at Duke University School of Law and OutLaw Events Coordinator.  He is working this summer as a judicial intern with Justice Dan Biles at the Kansas Supreme Court.