WASHINGTON -- The Supreme Court on Wednesday left for dead California's same-sex marriage ban, Proposition 8, but the question of gay and lesbian couples' constitutional right to marry remains very much alive.
By a 5-4 vote, the justices held in Hollingsworth v. Perry that the traditional marriage activists who put Proposition 8 on California ballots in 2008 did not have the constitutional authority, or standing, to defend the law in federal courts after the state refused to appeal its loss at trial.
“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,” Chief Justice John Roberts wrote in the majority opinion. “We decline to do so for the first time here.”
Roberts was joined in his majority opinion by Justices Ruth Bader Ginsburg, Antonin Scalia, Stephen Breyer and Elena Kagan. Justice Anthony Kennedy filed a dissenting opinion, joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor.
The judgement of the U.S. Court of Appeals for the Ninth Circuit was vacated and the case remanded with instructions to dismiss the appeal for lack of jurisdiction. While California will likely begin issuing marriage licenses to same-sex couples, the decision will not have an impact beyond the state's borders, and other same-sex marriage bans across the country will be left intact.
Delivering the majority opinion from the bench, Roberts characterized the defendants as possessing a "generalized" interest in their fight to uphold Proposition 8.
"Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California Law," Roberts said. "We have repeatedly held that such a generalized grievance, no matter how sincere, is insufficient to confer standing."
"We have no authority to consider the question in their case," he concluded, noting that the court's role was to address disputes that were "judicial rather than political."
The defendants were "free to pursue an ideological commitment" to their definition of marriage as between a man and a woman, Roberts said.
The room remained silent as Roberts spoke. Just minutes before, the court had delivered its opinion striking down the Defense of Marriage Act, a verdict that drew audible cries from members of the audience.
Some of the same-sex couples who shed tears during Kennedy's DOMA opinion continued to hold hands and nod their heads in agreement with Roberts. One woman, sitting with her partner, put her hand over her mouth as Roberts declared the defendants lacked legal standing, and therefore Proposition 8 would be tossed out.
California voters added the ban to the state's constitution in 2008 through a ballot initiative that reversed the state Supreme Court's recognition of same-sex marriage earlier that year. Two same-sex couples challenged it in federal court, and by the time their suit reached the justices, two lower courts had declared it unconstitutional.
Because standing is a threshold question in any federal case, the justices did not reach the plaintiffs' main argument that Proposition 8 violates constitutional guarantees of equal protection and deprives same-sex couples of the right to marry.
"[I]t is not enough that the party invoking the power of the court have a keen interest in the issue," the majority wrote. Because the Court did not find that the Proposition 8 proponents had "concrete and particularized injury," the justices concluded that they "have no authority to decide this case on the merits, and neither did the Ninth Circuit."
In his dissent, Kennedy, a California native, wrote that the majority "does not take into account the fundamental principles or the practical dynamics of the initiative system in California," which, like 26 other states, "uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative."
Because the court "insists upon litigation conducted by state officials whose preference is to lose the case," Kennedy continued, the majority's decision "means that a single district court can make a decision with far-reaching effects that cannot be reviewed."
Indeed, now that the justices have reversed the appeals court's finding and vacated its decision to strike down the ban on constitutional grounds, Judge Vaughn Walker's wide-ranging 2010 judgment against the California government remains the only decision to which both plaintiffs and defendants were properly before a federal court.
In that ruling, Walker wrote, "Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."
Alito, dissenting in Wednesday's DOMA decision, lambasted Walker's ruling and how to apply it moving forward. "[S]ome professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are 'clearly erroneous,'" Alito wrote in a lengthy footnote. "Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously."
If March's oral arguments were any indication, the justices' unusual alliances on Wednesday -- Scalia and Roberts with three liberals in the majority and Sotomayor joining Kennedy and two conservatives in dissent -- would have realigned to their usual ideological divides had they at all even noted Proposition 8's constitutional merits in their opinions. Ultimately, however, the ruling's practical effect is the same as it would have been if the court had struck down the ban: Same-sex marriages can resume in the Golden State.
In a statement later on Wednesday, California Gov. Jerry Brown (D) confirmed it. "In light of the decision, I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted," he said.
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