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.

Steve

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.

Andrew

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

Andrew,

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

Andrew

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.

Andrew

June 26th, 2013

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

http://abclocal.go.com/kabc/story?section=news/state&id=9042429

http://www.huffingtonpost.com/2011/05/03/prop-8-kamala-harris_n_857235.html

Timothy Kincaid

June 26th, 2013

Andrew,

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

Charles

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.

Andrew

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.

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.

 

Latest Posts

The Things You Learn from the Internet

"The Intel On This Wasn't 100 Percent"

From Fake News To Real Bullets: This Is The New Normal

NC Gov McCrory Throws In The Towel

Colorado Store Manager Verbally Attacks "Faggot That Voted For Hillary" In Front of 4-Year-Old Son

Associated Press Updates "Alt-Right" Usage Guide

A Challenge for Blue Bubble Democrats

Baptist Churches in Dallas, Austin Expelled Over LGBT-Affirming Stance

Featured Reports

What Are Little Boys Made Of?

In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.

Slouching Towards Kampala: Uganda’s Deadly Embrace of Hate

When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.

Paul Cameron’s World

In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.

From the Inside: Focus on the Family’s “Love Won Out”

On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.

Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"

The Heterosexual Agenda: Exposing The Myths

At last, the truth can now be told.

Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!

And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.

Testing The Premise: Are Gays A Threat To Our Children?

Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.

Straight From The Source: What the “Dutch Study” Really Says About Gay Couples

Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.

The FRC’s Briefs Are Showing

Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.

Daniel Fetty Doesn’t Count

Daniel FettyThe FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.