Supreme Court Says No Standing to Appeal Prop 8: Summary and Analysis

Here are my initial takeaways from the Court's opinion in Hollingsworth v. Perry.

Cooper1. The Law
The majority stays close to traditional federal standing rules. The dissent does not.

Traditionally, a litigant trying to get into the federal courts and one trying to appeal a federal decision has to be seeking a remedy for a "personal and tangible harm." A valid federal case also has to be a live argument all the time: there have to be two sides disagreeing about an ongoing controversy.

There was no issue starting the case. The plaintiffs wanted to get married; the State of California had a law — Prop 8 — that prevented them from doing so. There also would not have been a problem had California wanted to defend Prop 8: Judge Walker's decision to require issuance of marriage licenses was a direct "injury" to the State. But California backed out, leaving only the Prop 8 Proponents, who got involved in the case but did not necessarily have to.

As ordinary citizens, they only have a "generalized grievance" — I want my law enforced! — and no direct harm came to them from the invalidation of Prop 8 at the district court. After all, they weren't the ones to have to issue licenses; the State of California was. They had no personal stake in the litigation other than what may very well be a deeply held belief in keeping gays away from marriage.

The Court splits, then, on the view of the effects of the California Supreme Court decision on standing. If you recall, the Ninth Circuit asked the California Supreme Court to determine if, as a matter of state law, the power to propose and enact a ballot initiative includes a right to defend that law in court. The California Supreme Court said yes, and the dissent relies heavily on the state court's argument that the power to "propose and enact" would mean nothing without the power to "defend."

But the dissent misses the point that regardless of what a state court says about state law, you cannot get into the federal courts without particularized interest. Plus, once a ballot initiative becomes a law, it is a law like any other law, whether passed by the legislature or passed by the people. If random citizens do not have the power to defend a law passed by the legislature, then how can they have to the power to defend a law that happened to passed by the people. A law is a law is a law.

Sotomayor2. The Line-Up
There have already been quite a few questions swirling about the unexpected line up of the judges. I think the questions are a little misplaced, though questions remain for further research.

Justice Scalia has a long history of narrowing standing rules to restrict access to the federal courts. The Chief Justice, as a younger judge, has a shorter history, but comes from the same intellectual tradition. It should come as no surprise, then, they both of them are on the side of limiting standing in this case. Justice Breyer, a moderate if there ever was one, is a bit of a wild card, so I'm never surprised to see him join his more conservative colleagues on occasion.

The Twitterverse is questioning how Justice Sotomayor ended up separated from her liberal colleagues. Whereas she joined the dissent, Justices Ginsburg and Kagan joined the majority against standing. It occurs to me that perhaps Justices Ginsburg's and Kagan's positions (and, conversely, Justices Thomas's and Alito's) are the ones that require explanation, not Justice Sotomayor's.

There are numerous explanations. The easiest is politics. Perhaps Justice Sotomayor wanted to reach the merits and is not going to put formalist rules over substantive fairness. And perhaps Justices Ginsburg and Kagan were more uncertain about the fate of marriage at their Court and did not want to risk a negative decision that could set back our cause. Justice Thomas has shown a great willingness to dispense with ideology to achieve his radical conservative goals, so maybe he wanted to reach the merits that Ginsburg and Kagan feared. These are, of course, pure speculations.

I will do some research into the justices's past decisions on standing and jurisdiction to see if I can find a pattern.

California3. The Effec
Marriage will soon return to California, but if we continue with a federal litigation strategy for a national right to marry, we should look to other cases in the federal courts.

Substantively, we lose the Ninth Circuit's opinion. Because the Prop 8 proponents never had the right to be there in the first place, that decision fails the jurisdictional requirements for valid federal cases. I had serious doubts about the intellectual and legal weight of that decision, but it nevertheless was the first federal appellate court decision to declare unconstitutional a ban on the freedom to marry. The greater precedential effect of that cannot be understated. Now, we have to start again with some of the other marriages cases winding their way through the courts.

California will soon become the 13th state to have the freedom to marry. The thing is, it had it before; it finally has it again. But before any of our friends in California can get married, the stay that has been holding back Judge Walker's decision has to be lifted. It is my understanding that the Supreme Court decision will take effect in 25 days. The stay, which was put in place first by Judge Walker and then by the Ninth Circuit, would be lifted after that.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for
Information Law and Policy and a professor at New York Law School and is
concurrently getting his PhD at Columbia University in New York City.
He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard
Law School. Ari writes weekly posts on law and various LGBT issues


  1. stu says

    Ari, what do you think about the suggestion that Walker’s decision is only applicable to the four plaintiffs?

  2. Gerry says

    I keep hearing that the ruling applies only to the defendants or is limited to a few counties. What about that?

  3. rustytrawler says

    Protect Marriage is saying that “only an appellate court can strike down a voter proposition statewide” and that Judge Walker’s ruling does not meet this criteria. Thus marriage will not return to California.

    Is there any truth to this or are they just posturing?

  4. PTSD says

    This decision reminds me of reading about wounded war veterans, returning from Iraq or Afghanistan, trying to get treatment for PTSD from the Veterans Administrations. They fill out a stack of forms 2 inches high, and submit it to the VA, wait a year for it to be processed only to be told that they made a mistake somewhere along the way and that they have to start over. Meanwhile they suffer.

    Ginsberg, Breyer and Kagan just told LGBTs to go back and start over. Thanks for nothin’ you soulless effin’ bureaucrats.

  5. David says

    If SCOTUS has determined that the defendants did not have standing in the ninth circuit court, and consequently, the decision by the ninth circuit does not apply, shouldn’t the ninth circuit stay be automatically lifted when the SCOTUS decision comes into effect?

  6. Rich says

    An Arizona case might be a good choice: If a Federal District Court upholds Arizona’s prohibition, the 9th Circuit will be required to resolve the conflict; if they follow Judge Walker’s precedent, we’ve added another state to our tally.

  7. Zlick says

    I’m not so sure the 9th Circuit ruling would have had much weight as precedent. I could be wrong, of course, but it found marriage discrimination unconstitutional only on the narrowest grounds that would rarely come up again, i.e., rights that were granted and then taken away. I’m not sure what practical use it would be to have been able to cite that case in other federal proceedings.

    Under those circumstances, and though its usefulness as precedent is practically nill, I much prefer Judge Walker’s broad and frankly thrilling ruling to be the law of this case. I was not happy when the 9th essentially overturned its important details while affirming its effect.

    So, yes, another case will have to start and wend its way through the courts. How long will it be till a gay married couple wed in New York moves to New Mexico and sues in federal court for the same recognition of their marriage under full faith and credit that would be granted to a straight couple? Tomorrow? The next day? The process is long, but it will start pretty soon, I expect.

    Meanwhile, because of the day’s other ruling, we don’t just get back the Skim Milk quasi-equal marriage we previously had for a short time here in California. We get the real deal. And THAT was worth waiting and fighting for!

  8. Mikey DallasM says

    Ari, I and many others are still wondering if we can fly from a backwater hell hole like Texas where I live, get married in a equality state, and return and get federal benefits. Yes?

  9. Larry says

    If the Prop 8 proponents don’t have standing to appeal to the 9th Circuit, then is it not also the case that they didn’t have standing to defend Prop 8 in US district court? Wouldn’t that vacate Judge Walker’s ruling as well?

  10. MiddleoftheRoader says

    You need to read the dissents in the Windsor case to understand why Kagan, Breyer and Ginsburg joined Roberts and Scalia in the Prop 8 case.

    The Windsor dissents of Scalia (joined by Thomas) and Alito (joined by Thomas) make it very clear that they don’t think there is a constitutional right to same sex marriage. The Roberts dissent in Windsor is careful and nuanced, but its implication is that there is no such right to same sex marriage (and after all, he voted against Windsor’s arguments and he specifically stated that he agrees with Scalia’s view that DOMA is valid). Thus, its clear there were 4 votes against declaring a federal constitutional right to same sex marriage.

    So, if the Prop 8 court had reached the merits of the case — instead of throwing it out on standing — the only way to win would have been for Justice Kennedy to believe that there is such a federal constitutional right And he was very, very, very careful in the Windsor case not to even hint whether such a right exists (although his opinion in Windsor is TERRIFIC).

    For those who are upset that the Court did not address the merits of Prop 8, be careful what you wish for. Betting everything on Justice Kennedy for that result is truly gambling.

    As a practical matter, same sex marriage returns to CA (the district court decision CAN be applied everywhere in the state because it was a state law whose enforcement was enjoined). The political momentum is on our side. The next big target is Illinois — if it votes for same sex marriage in the next couple of months, that carries the momentum…………to other states.

    At some point, when 40% of the US population lives in states with same sex marriage, it will probably be impossible for the Supreme Court to continue to allow other states to view “married” couples as “unmarried” when they move from CA or DE or MD to Alabama or Mississippi or Nebraska. But it’s still a year or two too early for the Court to go that next step.

  11. Bill says

    @MiddleoftheRoader: “As a practical matter, same sex marriage returns to CA (the district court decision CAN be applied everywhere in the state because it was a state law whose enforcement was enjoined).”

    The catch (even though unlikely in practice) is that someone such as a city clerk outside California’s Northern District could file a lawsuit in another district and run it past another judge. If that judge rules in favor of Prop 8, then how do you resolve the conflict. Most likely, the state would appeal to keep Prop 8 in its coffin, knowing that the 9th Circuit Court upheld Judge Walker’s ruling.

    So trying again to keep Prop 8 would be a waste of time, but maybe the proponents don’t care. They may be satisfied with delaying tactics (after all, the “second coming” is right around the corner, as it has been for the past 2000 or so years, and like the Wizard of Oz, Jesus will
    fix everything). And delaying the inevitable is not all they get: they also get billable hours, provided they can find people dumb enough to be billed.

  12. MiddleoftheRoader says

    Bill, you are totally correct. A county clerk could do that. But please keep in mind that this tactic has been used, and is still being used, on issues way beyond Prop 8. When the Supreme Court outlawed ‘separate but equal’ education, the ‘massive resistance’ forces in VA actually convinced some cities and counties to close all public schools! And the Brown decision had to be cited, dozens (hundreds?) of times in other disputes involving schools in other states. The bottom line is that the anti-marriage forces can keep this going for years, and they will, and no Supreme Court decision would prevent them from arguing nuances, technicalities, distinctions, etc. as they prolong the battle. And of course another example is abortion — the anti-abortion forces never give us, and we still have to deal with thousands of court cases after Roe v Wade decided the issue.

    Unfortunately, that’s the way our system operates. And yes, it’s likely the 9th Circuit would just “reinstate” its Prop 9 analysis in whatever case comes along next from that CA county clerk.

  13. Jeff says

    Of course the anti-marriage forces can keep this going for years if they feel like spending the cash to do so. They might be advised to spend their money in another state rather than California.

    But regardless of their efforts, same-sex marriage licenses in CA will for sure begin to get issued asap. I do not believe that they can stop them, and keep them held up like they did during the appeal process. This Supreme Court ruling was for real.

  14. JONES says

    Haven’t seen any comment yet on what I believe was a clear signal from Justice Kennedy in his opinion when he states that ‘states have a right to regulate marriage but only with due regard to constitutionally guaranteed freedoms’.

    Marriage has been upheld as a constitutionally protected right in 14 prior cases so I don’t think it’s a stretch to see his language here as support for an LGBT couple to challenge a state that denied them full marriage equality either by law or constitutional amendment, as in the remaining 37 states.

    I also think Kennedy wanted to issue a ruling on Prop 8 because he is a supporter of full equality for LGBT citizens, but we can take that discussion up at another time.

  15. Bill says

    @Jeff: Local newspapers (I live near San Francisco) have stated that the Yes on Eight people are trying to limit the ruling to just the couple who filed the lawsuit or maybe the counties they live in. They’ll try other things later (they can’t try the “Christian County Clerk” ploy right now because of standing – that will have to wait until marriage licenses are actually issued).

    The “Yes on Eight” group has an incentive to keep filing lawsuits – they have to be seen as doing something to raise money so that the people running that organization can keep their jobs. Think if “Yes of Eight” as having two parts to it: lawyers who get paid to gum up the works, and fund raisers who get people to contribute to pay for the lawyers and whatever else they do (including, of course, paying for more fund raising). They won’t stop until their funding source – including a lot of people who believe the world was literally created in 7 days and who can therefore be trusted to believe anything – dries up.

  16. David in Hartford says

    @Ari – I read the following on Should there be a default judgment in this matter? Also, if the District Court’s (Walker’s) opinion stands, then Prop 8 remains on CA’s constitution albeit unenforceable. The only area I am confused about is if CA declined to intervene in the case, why didn’t the Supreme Court’s decision remove standing all of the way to the District Court level? Was it because CA remained as a defendant in the trial court that standing only applied up to the Circuit Court’s decision?