Prop 8 Ruling: Case Rejected on Standing, Reverts Back To Broader Lower Court Ruling

Jim Burroway

June 26th, 2013

In a 5-4 decision, the U.S. Supreme Court rejected the challenge to Prop 8, finding that after the state of California decided not to defend the law and Prop 8 proponents stepped in, the Prop 8 supports had no standing to appeal the lower court’s decision. What makes this remarkable is that the narrower Ninth Circuit Court’s decision has been vacated and the broader ruling by Federal District Judge Vaughn Walker prevails (PDF: 173KB/35 pages):

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.

Because 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.

The majority opinion represents an unusual lineup: Chief Justice Roberts and Justices Antonin Scalia, Elena Kagan, Ruth Bader Ginsberg and Stephen Breyer. Justice Anthony Kennedy, writing in a dissent joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor argued that Califirnia’s initiative process warranted an exception.

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. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century. “Through the structure of its government, and the character of those who exercise government authority,a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). 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.

Because this is a narrow technical ruling, it does not address the broader questions of whether California’s Prop 8 or any other state ban on same-sex marriage is constitutional or not. That decision will await a different court challenge, which makes this one something of a let-down. But this punt at least will allow another 34 million Americans to live in a jurisdiction with marriage equality. We await further word on when that will go into effect.


June 26th, 2013

CA’s fucked up initiative system hasn’t helped democracy in that state one bit. At least not in the last few decades where it has only been abused. Initially it served a purpose and helped reduce the power of an oligarchy, but then like so many things it was corrupted.


June 26th, 2013

The CA Prop system has been taken over by moneyed interestes who write confusing Propositions intended to swell the coffers of specific industries… mostly.

Every once in a while you get a pure piece of social legislation.

Even so, as were the Founding Fathers, I’m highly suspect of the passions of the electorate, which is why we prefer a Republic over a Democracy at the Federal level. (Seriously – which branch of gov’t is the most fked up? The House, of course).

For those who believe that Harris and Brown erred by not providing standing against which to fight Prop 8, re-read Kennedy’s opening paragraphs in which he speaks of Loving v Virginia in a parenthetical clause (which suggests to me that he’s not grouping them together). Although the overturn of DOMA at the Federal level was a no-brainer, there’s real question as to whether he’d have waded into the jurisdiction of states – traditionally the arena in which marriage is defined – to overturn a Prop 8 case with standing.

The next time you wonder whether local elections matter…

The next time you wonder whether off-cycle elections matter…

Kamela Harris (CA Atty Gen.) won in 2010 by 0.8% of the vote, and promptly vowed not to defend Prop 8, which led to it’s down fall today.

That’s potentially the difference for tens of thousands of gay couples right there.

So, just a reminder: always know who’s running, even for whacky jobs like AG. And never, ever miss an election. Your life may depend on it.

Timothy Kincaid

June 26th, 2013


actually the state declined to appeal when Arnold Schwarzenegger was Governor and Jerry Brown was Attorney General.


June 26th, 2013

That’s only partially true – I know because I live here and it became an election issue. The case was still proceeding and the AG could have stepped in to defend it. Harris pointedly did not. Her opponent vowed to do so.


June 26th, 2013

Tim, granted, you don’t live here… but is your google broken?

Timothy Kincaid

June 26th, 2013


I am also a Californian and recall the election. Harris was, indeed, supportive.

And I recall that threats of appeal were a part of the campaign for Harris.

However, I think that if you go back and look at the timing you’ll see that the deadline for the state to appeal was before the election. Even though I received a lot of campaign emails that pretended otherwise.

Timothy Kincaid

June 26th, 2013

Yes, she submitted an amicus brief


June 26th, 2013

I cringe every time someone uses the phrase Reverts Back ………….. please change the title fo this thread. Sorry, it is my one pet peeve.


June 26th, 2013

They were also part of the campaign against Harris, and it was the subject of scholarly discussion at that time as well. An Intervenor can join a case as a 3rd party not originally in the suit, and in so doing, she would have provided a party with standing before the court, which could have been done all the way up to the SCOTUS appeal, which had not been filed prior to the election.

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