Friday, June 28, 2013

The Supreme Court Rules There Is No One Left Standing To Appeal Prop. 8

By Associate Clinical Professor Jessica Levinson

This op-ed was originally posted on Jurist

In a 5-4 opinion written by Chief Justice John Roberts, the US Supreme Court has ruled that there is simply no one left standing to appeal California's infamous 2008 ballot initiative, Proposition 8. Prop 8, as the entire world now knows, amended the California State Constitution to define marriage as between a man and a woman to the exclusion of same-sex marriages.

In the much-anticipated case, Hollingsworth v. Perry, the Court avoided the larger, and more politically charged issue potentially presented by the case: whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as between a man and a woman. This question raises the issues of whether gays and lesbians are members of a so-called "suspect class" and whether there is a "fundamental" right to marry.

Chief Justice Roberts ruled on narrower grounds, finding that proponents of ballot initiatives lack the "standing" under Article III, ¨ 2 of the Constitution. Standing, the Court reiterated, is necessary to appeal a case in federal court.

How did we get here?

Back in 2009, two same-sex couples residing in Los Angeles and Alameda counties sued, among others, then-Governor Arnold Schwarzenegger and then-Attorney General, current Governor, Jerry Brown in federal court, along with other state and local officials, contending that Prop 8 violated the US Constitution. Schwarzenegger, Brown, and the other government officials opted not to defend the suit, and former District Court Judge Vaughn Walker allowed petitioners, the official ballot measure proponents, to intervene and defend the measure.

In a broad ruling, Judge Walker concluded that Prop 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Schwarzenegger and Brown both opted not to appeal the ruling. Proponents of Prop 8, however, sought to appeal Judge Walker's decision to the US Court of Appeals for the Ninth Circuit. But just because Judge Walker ruled that petitioners could intervene in the suit did not mean that they had standing to appeal.

The Ninth Circuit temporarily punted the issue, asking the California Supreme Court whether, under state law, proponents of ballot initiatives have standing to defend and appeal those initiatives in court. The California Supreme Court answered that question in the affirmative, and so the case went back to the Ninth Circuit.

The Ninth Circuit upheld Judge Walker's decision, but on somewhat narrower grounds. In a 2-1 ruling, a three-judge panel of the Ninth Circuit found that Prop 8 was invalid because it took away rights previously granted under the California State Constitution. Prior to the passage of Prop 8, the California Supreme Court ruled that marriage is a fundamental right under the California State Constitution.

What is standing?

Essentially the doctrine of "standing" refers to a party's ability to demonstrate an injury that will be remedied by a favorable resolution of the case. In the words of the Court today, standing requires that parties have "suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision." The Court then expanded its explanation by stating that parties "must seek a remedy for a personal and tangible harm."

In the key portion of today's decision, Chief Justice Roberts found that petitioners lacked a "direct stake" in the outcome of their appeal to the Ninth Circuit. Roberts concluded that "[t]heir only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law." And that, as we now know for certain, is not enough.

In what may be the money quote in Roberts' opinion, he wrote, "[w]e 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." With this quote, Roberts frames this decision as one that was all but a fait accompli -- were the Court to rule the other way, it would go against the weight of history.

What happens next?

Because the Court concluded that ballot initiative proponents lack the standing necessary to appeal the decision by the US District Court, that decision becomes the final word on the constitutionality of gay marriage in that jurisdiction. Here is the final line from the opinion: "[b]ecause petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction."
Put another way, Judge Vaughn Walker, you get the final word, at least for now.

What does this mean for ballot initiatives?

This ruling has important implications for jurisdictions that have the ballot initiative process. It appears that this decision means that if a ballot initiative is successfully challenged in court and the state or local officials opt not to appeal that ruling, there could be no one left standing to appeal that decision. For lack of anyone left standing, the ruling becomes final. Critics of the Supreme Court's decision will argue that one district court judge overturned a ballot initiative passed by a majority of the voters.

It is important to remember, however, that the judiciary stands as an important check against majoritarian over-reaching. One of the problems with direct democracy is that it can lead to tyranny of the majority. Judges should check that power, just as one did here.
What does the ruling mean for the legality of gay marriages?

By avoiding the larger issue presented by this case the Court is allowing time for the legality of same sex marriage to continue to play out through the legislative process in states throughout the nation.

One can view the Court's decision as a victory for both sides. At least if one's definition of "victory" is "first do no harm." Both proponents and opponents of same sex marriage have avoided a potentially damaging decision on Equal Protection grounds.

The arc of history seems pointed quite firmly in favor of proponents of same sex marriage. For now we will watch this issue play out in state legislative houses throughout the nation

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