I should note at the outset that, unlike the decision in the DOMA case, the Propisition 8 case is not actually about same-sex marriage. It is about election law, the initiative process, and the rules for who can bring cases in federal court.

It has the effect of upholding a district court ruling that held Proposition 8 unconstitutional, but it does not rule in any way on the constitutionality of same-sex marriage.

As a practical matter, the next steps are:

* the 9th circuit must issue an order lifting the district court's stay of its ruling

* the Governor must issue an order to the county clerks that they resume issuing marriage licenses to same sex couples

* some county clerks will probably refuse and there will be subsequent lawsuits.

But as a matter of law, same sex marriages are now legal in California again.

The decision in the Proposition 8 case can be found at http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf.


First, some background.

In 2008, the California Supreme Court held that the state constitution's equal protection clause required recognition of same-sex marriage. Less than two weeks later, voters submitted petitions for an initiative constitutional amendment restricting marriage to opposite-sex couples. The following November, the initiative passed, and California's constitution was amended; the state stopped recognizing new same sex marriages (although the CA Supreme Court held that those marriages already entered into remained valid).

Someone sued. (INTERJECTION: someone always sues).

The federal district court which heard the case held that the 14th amendment guarantee of equal protection required recognition of same sex marriages.

The Attorney General of California declined to appeal. (The AG, who is now the Governor, had actually declined to defend the law in the first place).

The official proponents of the initiative asked for permission to appeal. His argument was that, if the AG declines to appeal, then the people who wrote and paid for and voted for the initiative have no recourse to defend the law that they brought about, and that this is a serious problem. The initiative system was designed to give the people a way to work around the politicians when the politicians were frustrating the popular will; if the AG can simply kill an initiative he doesn't like by not defending it in court, the initiative system is substantially weaker.

The 9th circuit asked the California Supreme Court what the California SUpreme Court thought about this. Under California constitutional election law, they asked, does the official proponent have the right to appeal an adverse court decision if the state officials decline to do so? 

The California Supreme Court said 'yes', and then explained that in such cases, the official proponents were essentially acting as agents of the state, vindicating the state's interest in having the law enforced.

Now, it doesn't necessarily follow from that that under federal law, the official proponents are able to act to appeal the case. The 9th circuit assumed that it did follow, but that question is the heart of the decision handed down today.

The Court describes the problem this way:

Federal courts have the authority to answer questions only when there is an actual case or controversy in law (as opposed to in politics). For there to be such a case or controversy, at least one party to the dispute must have suffered "a concrete and particularized injury." 

So are the official proponents able to show that they have been hurt, or that they properly stand in for someone who has been hurt? If the answer to that is no, then they had no right to appeal, and the 9th circuit and the Supreme Court had no power to hear the case, and the district court decision must stand. (But, for procedural reasons, such a decision is only binding on the parties named in the suit, which include the Governor and so therefore will include all of the counties in California, but will not apply outside of California).

The Court decided the answer is 'no'.


The Constitution says the federal courts can decide 'cases' or 'controversies'. Federal courts have always interpreted this to require that someone bringing a case prove he has suffered (a) a concrete and particularized injury (b) that is fairly traceable to the challenged conduct and (c) is likely to be redressed by a favorable court decision. 

This is an important gatekeeping rule which is set up to ensure that courts aren't issuing advisory decisions, and to confine judicial power so that the judiciary doesn't become the most powerful branch of government, dwarfing actions by the executive and the legislature.

It's unusual for there to be a standing problem with appeals, but appeals have to follow the same standing rules, and sometimes there are problems.

In this case, the named officials in the original lawsuit declined to appeal. The state of California declined to appeal. The only people who tried to appeal were the initiative proponents. But the district court had not ordered them to do, or to not do, anything. So how were they hurt? To have standing, a litigant must seek relief for an injury which affects him in a personal and individual way; the initiative proponents can't point to that.

So the official proponents have no standing on their own, and the only interesting question is whether they can act in California's stead and borrow the standing California would have if it wanted to go to court.


In general, in previous cases, when the federal courts have allowed litigants to assert the interests of others, they must still have suffered an injury themselves.

As was already discussed, the official proponents can't demonstrate that.

Instead, the official proponents want to rely on the state of California's claim that California law authorizes them to appear and assert California's interest in the validity of the proposition. That is, the official proponents are saying, California clearly has standing, and California says we're acting for them, so we have standing.

But the problem with this is that while California law allows the official proponents to argue in defense of Proposition 8, it does not make them de facto public officials, and it clearly doe snot make them agents of the state because the basic features of an agency relationship (which require that the principal be able to control the agent's actions) are not present. The official proponents don't answer to state officials, they don't answer to voters, they are completely autonomous, and therefore cannot be agents.

So if the official proponents aren't public officials, and they aren't agents of the state, they can't act on the state's behalf in federal court.

Since the official proponents can't act on the state's behalf in federal court, and they have no independent right to bring the appeal in federal court, the 9th circuit had no power to hear the case. It's decision is overturned, it is ordered to dismiss the appeal for lack of jurisdiction, and the district court decision will stand.


Justice Kennedy dissented. (INTERJECTIONS: there are always dissents). Oddly, he was joined by Justice Thomas, Justice Alito, and Justice Sotomayor, who would probably not have agreed on the outcome if the court had addressed the question of whether the constitution requires recognition of same sex marriages. But, like I said before, that's not what this case is about, so they can get together on this question.

The dissent considers the question settled by the California Supreme court. "Under California law, a proponent has the authority to appear in court and assert the State's interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process."

Furthermore, Kennedy says, "The Court’s reasoning doesnot take into account the fundamental principles or thepractical dynamics of the initiative system in California, which uses this mechanism to control and to bypass pub- lic officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied."


In Kennedy's view, the heart of the majority's argument is that proponents are not sufficiently tied to the state government to be able to exercise the state government's right to appeal. The problem, of course, is that the same lack of ties is the precise reason the California State SUpreme Court thought it was essential that they be able to exercise the state's interest in defending the law. The whole point to the initiative system is to create a law making process which bypasses state officials. If the very officials the process is designed to circumvent are the only parties who can defend an enacted initiative, the initiative system is seriously undermined.

In such circumstances, it's entirely rational of California to delegate its power to non-agents who are not public officials. 

By what right, the dissent asks, does the court deny California the authority to choose who will represent it in federal court?

"The Court's opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case." 

Indeed, "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."
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