Supreme Court Dismisses California's Proposition 8 Same-Sex Marriage Case

by Holland & Knight LLP

Sidestepping a highly divisive issue, the U.S. Supreme Court ruled yesterday that it lacked authority to decide on the merits whether an initiative passed by California voters limiting marriage to opposite gender couples violates the U.S. Constitution. Hollingsworth v. Perry, No. 12-144, (June 26, 2013). By a 5-4 vote, the Court ruled that proponents of the initiative lacked standing or a concrete stake in the in the outcome of the case and thus could not appeal a federal district court decision striking down the initiative. The decision leaves the federal district court decision finding Proposition 8 unconstitutional in place, but does not otherwise answer the question of whether states can prohibit same-sex marriage.


In 2000, California voters approved Proposition 22, an initiative that amended the California Family Code to provide that "only marriage between a man and a woman is recognized in California." In 2008, the California Supreme Court ruled that Proposition 22 violated the state constitution, and the court ordered the state to start issuing marriage licenses to same-sex couples who wanted them.

Nearly 18,000 same-sex couples were married in California. But in November 2008, the California voters passed Proposition 8, which amended the state constitution to overturn the Supreme Court's decision and eliminate the right of same-sex couples to get married.

The Hollingsworth Case

The plaintiffs in Hollingsworth — two same-sex couples who want to get married in California — sued in federal district court in San Francisco alleging that Proposition 8 violates their federal constitutional right to equal protection of the laws and their right to marry. California's governor, attorney general, and other state and local officials who would implement and enforce Proposition 8 refused to defend the initiative as constitutional. As a result, the individuals and organizations that had sponsored Proposition 8 joined the case to defend it.

After a lengthy trial, the district court ruled in 2010 that Proposition 8 was unconstitutional. The court found that the federal constitution grants same-sex couples a fundamental right to marry, and concluded that California had not offered a sufficient reason to infringe on that fundamental right and limit marriage to opposite-gender couples.

The proponents of Proposition 8 appealed the decision to the U.S. Court of Appeals for the Ninth Circuit. But a dispute arose about whether the initiative proponents had "standing" to appeal. As a result, the Ninth Circuit asked the California Supreme Court to decide whether California law permits the proponents of an initiative to step into a case to defend the initiative’s validity. The California Supreme Court ruled that they do, and the Ninth Circuit proceeded to decide the case.

The Ninth Circuit also ruled that Proposition 8 is unconstitutional, but it did so on a narrower basis than did the district court. It did not decide whether there is a constitutional right to same-sex marriage. Rather, it concluded that Proposition 8 is unconstitutional for another reason. In 1996, in a case called Romer v. Evans, the Supreme Court held that an amendment to the Colorado constitution which prohibited gays and lesbians from seeking or receiving protection from discrimination violated the federal Constitution. The Ninth Circuit found the same logic applied to Proposition 8. The initiative took away the right of gays and lesbians to marry that the California Supreme Court had recognized simply because voters did not like them, the court concluded, and that was unconstitutional.

Supreme Court Review and Decision

When the proponents of Proposition 8 asked the Supreme Court to review the case, they requested that the Court decide a much broader question than the Ninth Circuit had addressed: whether the U.S. Constitution prohibits a state from defining marriage as the union of a man and a woman.

The Supreme Court agreed to hear the case. As in the Windsor case, the Supreme Court ordered the parties to address a procedural question in addition to the question of same-sex marriage. Specifically, the Court ordered the parties to address whether the proponents of Proposition 8 have "standing" — a legal right to appear in court to defend the initiative — as a matter of federal (as opposed to state) law.

Answering that question, the Supreme Court ruled by a 5-4 vote that citizens lack standing to sue or appeal to defend an initiative simply because they proposed it and shepherded it through the state initiative process, even when state officials will not defend the initiative. The Court stated that only parties who suffer a concrete actual injury from the operation of a law have standing to ask a federal court to resolve a dispute about the law. The same rule applies on appeal. Here, any harm the initiative proponents suffered as a result of the district court decision finding Proposition 8 unconstitutional was no different from the harm suffered by any other California voter. The proponents' only interest was to vindicate the constitu­tional validity of a generally applicable California law. Such a "generalized grievance" — no matter how sincere — is insufficient to confer standing, the court ruled.

The Court further held that the California Supreme Court's conclusion that initiative proponents have a right to defend initiatives under California law was irrelevant. "States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse," the majority stated. The Court concluded: "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. We decline to do so for the first time here."

Four justices would have found that the initiative proponents had standing to appeal. Because the initiative proponents lacked standing to appeal the judgment of the Dis­trict Court, the Ninth Circuit never should have considered the appeal. The Court vacated the decision of the Ninth Circuit and directed the Ninth Circuit to dismiss the appeal.

What The Decision Means

Narrowly, the Hollingsworth decision means that the federal district court's decision striking down Proposition 8 stands and same-sex marriage can resume in California. It does not decide the validity of state laws limiting marriage to opposite-gender couples. The district court decision stands, but has no precedential force outside of California.

More broadly, the case leaves the fundamental constitutional questions concerning same-sex marriage for another day. But we can expect further litigation on Constitutional issues relating to same-sex marriage, and that, in some form, these issues will reach the Supreme Court again.

To ensure compliance with Treasury Regulations (31 CFR Part 10, §10.35), we inform you that any tax advice contained in this correspondence was not intended or written by us to be used, and cannot be used by you or anyone else, for the purpose of avoiding penalties imposed by the Internal Revenue Code.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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