The Marriage Equality Decisions

Picture-1The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.

Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.

United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.

The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). 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. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.

Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.

The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.

Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.

In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

23 replies
  1. Peterr says:

    From Kennedy’s dissent in Perry:

    [T]he initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.” Ibid.

    The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. . . . Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. See 52 Cal. 4th, at 1126–1128, 265 P. 3d, at 1006–1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court). As a consequence, California finds it necessary to vest the responsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so.

    Yet today the Court demands that the State follow the Restatement of Agency.

    Kennedy is even more blunt at the end of his dissent:

    In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. . . . 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 decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.

    A question for you, bmaz, or other lawyers lurking in the weeds: can the proponents of Prop 8 go to the CA Supremes and say “can you give us the Restatement of Agency, so we can defend what you said we can defend?”

  2. bmaz says:

    @Peterr: Hmmm, no, it would appear not. The crux of the decision was that without an assignment from the elected officials, there would be no agency.

  3. Peterr says:

    @bmaz: Given that the CA Supremes *thought* they were granting the DIs the right to go forward on behalf of the state, could they not then be asked to compel the elected officials to make the assignment?

    “OK, if we have to play ‘SCOTUS says’ for our initiative process to work, we’ll play ‘SCOTUS says’ . . .”

  4. bmaz says:

    @egregious: I have no idea why your comments keep getting caught up in the mod filter. I am immediately sacking the person responsible. Her name is “Marcy”!!

  5. GulfCoastPirate says:

    I hear Scalia had an ‘interesting’ dissent. Something about sodomites and polygamists coming to get him.

  6. P J Evans says:

    Since Prop8 was pushed through because the courts had ruled same-sex marriage is legal, it would be a really messy argument. (The people who backed it seem to believe the voters should decide when the courts rule against them, and the courts should decide when the voters are against them.)

  7. Mm says:

    I’m not sure how the CA Supes could give standing under Federal law which seems to be the way that Johnny is arguing here. I would think that it would have to be done by statute wouldn’t it?

    Kennedy does raise an interesting question about what would happen if there was an initiative designed to curb the power of elected officials, they found a court that ruled against the initiative and then obviously didn’t appeal. That would defeat the purpose of the initiative process.

  8. jo6pac says:

    @Mm: I truly happy this has finally been done correctly as possible by the supremes and the most fun is watching everyone from fat tony to other wingnutters heads explode.

  9. scribe says:

    @Mm: The CA Supremes interpreted CA law (and some US SCt precedent on ballot initiatives, too) to decide that the proponents of a ballot initiative had standing to defend that initiative when the state chose not to. That was sufficient for the District Court – so there could be an adversary proceeding in the District Court. (For the lawyers in the room, IIRC the District Court deferring to the CA Supremes was an example of a corollary to the Erie doctrine, mollified by the court sending the question over to the CA Supremes to have them announce what the relevant CA state law was rather than having to guess at what the CA Supreme Court would decide.)

    But, the standard for appellate standing is different. If you are not aggrieved by the judgment entered in the District Court, you have no standing to appeal. By way of example, suppose your brother-in-law was a passenger in your car while you were driving and he was injured in a 2-car accident. The case went to trial and the jury decided (and the judgment was entered in accordance with the jury verdict) that (1) your brother-in-law was to get nothing even though (2) the jury also decided the other guy was at fault and (3) the jury exonerated you from any fault at all. The only party in this hypothetical with standing to appeal would be your brother-in-law because he was the only guy aggrieved (screwed) by the judgment.

    The other driver would only have standing to appeal by filing a cross-appeal after your brother-in-law filed his appeal, because being at fault but not being liable is not something he’d be aggrieved by. He owed no money.

    You would only have standing to appeal as a cross-appeal, and probably only in the event the other driver chose to attack the liability determination that you had no liability and he had all of it.

    It gets complicated. But the end result is that in the Perry case the proponents of Prop 8 did not have standing because the rules of federal appellate standing didn’t support them. The judgment invaliating Prop 8 didn’t harm them at all. Someone else being able to marry doesn’t harm (or help) anyone not a party to that marriage. So, they weren’t aggrieved by the judgment and that was that.

    So, the case gets sent back to the Court of Appeals with instructions to dismiss the appeal for lack of appellate standing. That leaves the judgment of the District Court intact.

  10. SpanishInquisition says:

    @jo6pac: I don’t see how this is being done correctly at all. This is saying that ballot initiatives can be left hung to dry, which severely undermines them.

  11. SpanishInquisition says:

    @scribe: But ballot initiative sponsors are aggrevied because they put their time and/or money into the iniative and they’re being deprived of what they put into it without redress.

  12. Valley Girl says:


    Hey! Thanks! I know ew isn’t a “social site”, but as there haven’t been too many trash talks threads of late (where that random social stuff acceptable), I really appreciate your message. I would love to catch up, but not sure how to do that. I’m gone from that place on the internet where we first met…. any ideas? (I don’t do facebook….)

    Oh, I do read ew avidly, but don’t have the chops to match the level of info and insight in comments. So, I lurk.

    xxoo VG

  13. bmaz says:

    @scribe: No, there was direct standing in the trial court because the State, through the governor and AG were active defendants. However, they refused to participate in the appeal. It was only on appeal that the 9th Circuit officially, sua sponte certified the question to the California Supreme Court in order to ascertain standing for the appeal.

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