Prop 8 to be heard by SCOTUS

Timothy Kincaid

December 7th, 2012

The Supreme Court of the United States has granted a writ of certiorari to the appellants of Hollingsworth v. Perry, the Proposition 8 case.

On May 15, 2008, the California Supreme Court found that denying same-sex couples equal access to marriage recognition was a violation of the California Constitution. Chief Justice Ronald George wrote a stirring opinion which was inspired, he told reporters, by recollections from a childhood trip through the South and the “No Negro” signs he saw there.

At 5 pm on June 16, 2008, marriage licenses became available to same-sex couples. Marriage was legal in California.

However, an initiative had been circulated and had already qualified for the ballot. And on November 4, 2008, 52.2% of California voters chose to support Proposition 8 and thus cease the issuance of marriage licenses to same-sex couples. This unexpected result led to protests across the globe.

Supporters of equality went back to the California Supreme Court to argue that the proposition was improper under several different theories. The Court did not accept the logic.

But on May 23, 2009, three days before the California Supreme Court found Prop 8 to be valid, the newly created American Foundation for Equal Rights sued in federal court, asserting that Proposition 8 runs counter to protections granted by the US Constitution. And the attorney team behind the challenge was Ted Olson and David Boies, the two attorneys who had argued both sides of the election result dispute between George W Bush and Al Gore.

This federal judge assigned to the case, Judge Vaughn Walker, did something unusual; he ordered that a trial of fact would occur. This meant that attorneys could not simply come into the courtroom and make whatever claims they chose; rather, they would need to provide evidence for their assertions.

The lead plaintiffs were Kristin Perry and Sandra Steir and the lead defendant was Governor Arnold Schwarzenegger (whose defense consisted of “here, your honor”), so the case became Perry v. Schwarzenegger.

Because the Governor and the California Attorney General (currently Governor) Jerry Brown offered no argument in favor of discrimination, supporters of the proposition were granted standing to defend the law.

The case began in January, 2010. After a lengthy trial in which the proponents pulled all but a few witnesses (David Blankenhorn was virtually the only person on the stand for the proponents) and in which the motivations of the supporters of discrimination was the topic of newspapers and television news coverage, on August 4, Judge Walker issued a decision.

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

At this point the state of California, through its Governor and Attorney General, accepted the ruling of the court. And that would have been that, but the proponents of Prop 8 demanded that the case be appealed. And the Ninth Circuit Court of Appeals ruled that the proponents could have standing to appeal the decision of Judge Walker.

The decision was stayed pending the decision of the Ninth Circuit Court of Appeals.

In December 2011, the Ninth Circuit hear argument about the constitutionality of Proposition 8. And on February 7th of this year, the Ninth Circuit found that indeed Proposition 8 violated the US Contitution, however on a narrower position. The found that having once granted marriage rights equally, a state cannot choose a single demographic from which to withdraw those rights. The left open the bigger picture of whether marriage rights, in and of themselves, cannot be subject to discrimination based on animus.

Again the proponent of discrimination appealed and again the decision was stayed.

Today, the Supreme Court of the United States has announced that it will hear Hollingsworth v. Perry (the current name of the case, reflecting the challengers – headed by Hollingsworth).

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

Many pundits expected a different answer. We thought that the court would allow the ruling of the Ninth Circuit to stand, thus allowing marriage under the unique circumstances in California (rights revoked) and avoid the question of marriage equality until public opinion had solidified.

And that may still be their decision. By questioning standing, they may be signaling that they will find that the Ninth Circuit hearing was not valid and that they have no path through which to even hear the challenge to Judge Walker’s ruling. (If no one other than legally elected representatives of the people had the right to appeal, then there was no appeal).

Argument before the court will be given next year and by June 2013 it is expected that the fate of Proposition 8 will be resolved.


December 7th, 2012

Why, though, would they even accept the appeal only to turn it down on standing, when the district and appeals court rulings went the same way?

And wasn’t the standing issue already passed through the SC when the case was at the appeals court level? It’s been a long time…


December 8th, 2012

Yes but they could rule the 9th Circuit ruled incorrectly on the standing issue. In fact, I’d say that’s what will likely happen. Regardless for us Walker’s ruling would stand and same-sex marriage would resume in California.


December 8th, 2012

Stefan, I believe they would be hard pressed to find NO standing in the prop 8 case, as the California Supreme Court made a decision on the standing in Prop 8 case. It was a statement by the California Supreme Court that allowed the 9th Circut to conclude that the anti crowd had standing. I’m unsure that the US Supreme Court could over rule a State Supreme Court as to who has standing in a case based on California Law.


December 10th, 2012

Timothy, great overview, thanks. One point – you write:

“Because the Governor and the California Attorney General (currently Governor) Jerry Brown offered no argument in favor of discrimination, supporters of the proposition were granted standing to defend the law.”

Well, you should have written “granted right to provide arguments”. Formally speaking they were not granted standing. The suing party (Perry was clearly aggravated by prop8 so the trial would proceed no matter what, there was no question of standing. The “proponents” (the bad guys) were granted an “intervenor” status, not “standing” – they could argue “supplementary” arguments in a trial about which there was no question that it would proceed.

Standing issue popped up only on the appeal, because it was brought up by “proponents” – that’s where the question of their (article 3) interest starts to be important. As you wrote, if Supremes find that “proponents” had no standing it would wipe out the appeal, but Walker’s decision would be still valid and effective – it’s a tad confusing why if your first sentence about the district-level trial says they were granted “standing”…


December 10th, 2012


Can you explain how the Supreme’s could come to the conclussion that they had no standing when the California Supreme COurt issued a statement that they did, indeed have standing? I’m a bit confused how the Supreme’s could tell California’s highest court that they cannot decide, definitively, who has standing in a case involving California Law?

Timothy Kincaid

December 10th, 2012


Thank you for the additional information and correction.


Because the case is a federal court case, the US Supreme Court makes rulings as to federal law and who has standing in federal court. The Ninth Circuit requested the opinion of the state Supreme Court, but was not bound to follow that decision.

Remember this wasn’t about California Law. It was about whether the 14th Amendment of the US Constitution had been violated.


December 10th, 2012

I understand that part, Timothy. But thanks for the response. What I am talking about is that the 9th Circut, before hearing the appeal, inquired of the California Supreme Court if they held the pettitioners to have standing to appeal the case. The California Supreme Court said yes, and since the case went forward because of the Supreme Court of California’s decision and it’s interpretation of who could defend the law in just these circumstances. I was under the impression that the delay in the case at the time was about just this issue and it was decided, by California, that these pettioners had the right to defend and appeal the case. Part of the case is about the decision to allow a vote on rights granted by the Supreme Court of California, and their subsequent allowance to the people to take away that vote AFTER it having been found a Constitutional right. This case wouldn’t even be a case if the California Supreme COurt had said the pettioners lacked standing. Isn’t that decision the reason the appelate court took the case? I’ve been following this closely, but I might have gotten issues mixed.

From Prop 8 Trial Tracker website:

In arguments before the Ninth Circuit Court of Appeals, the plaintiffs in the Prop 8 case argued that the proponents of Prop 8 do not have standing under federal law to pursue the case–implicitly arguing that the circuit court and indeed the Supreme Court lack jurisdiction in the case. The Ninth Circuit asked the California Supreme Court to issue an opinion on whether or not the proponents had standing under state law to defend Proposition 8 (which the state court said they did), and then used this opinion to grant the proponents federal standing and declare Prop 8 unconstitutional.


December 10th, 2012

If they had standing under State Law to defend the case, it makes no legal sense that the ones allowed to defend a law by the Supreme COurt of that State would lack Federal Standing. Once granted standing to defend, at loss they should be granted standing to appeal.

But maybe I just am arguing the exact argument the Court is looking for/at.


December 10th, 2012

Also, wouldn’t a decision saying they had a lack of standing be interpreted also as a decision that a State Supreme Court has no say on who is allowed to defend the laws in the State and in courts? If one were to argue that they don’t have standing one would also be arguing that the Highest Court of the State has no right to decide the merits of the laws and their defense in it’s own State. THAT would be a huge decision with great implications for EVERY state.

Timothy Kincaid

December 10th, 2012


My comment turned into a commentary

Revisiting standing

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