Hollingsworth v. Perry, No. 12-1444 (U.S., filed June 26, 2013) (aka the “Prop 8 Case”)

U.S. Supreme Court Building, Washington, D.C.

I thought I would begin with the Prop 8 Case as that case is currently at the forefront of popular consciousness regarding this week’s decisions of the U.S. Supreme Court.  This is all the more so as a result of the surprisingly fast resumption of same sex marriages in California.

The subject matter of the decision is undoubtedly well known to my readers. The Prop 8 Case involved the U.S. Supreme Court’s review of the decisions of the lower federal courts holding that California’s Proposition 8, a voter initiative which changed the California Constitution to prohibit same sex marriage in California, was unconstitutional. A federal district (trial) court had enjoined (prohibited) enforcement of Prop 8 on the grounds that it violated the U.S. Constitution. The Governor of California and the State’s Attorney General, the persons who ordinarily have the right to appeal that decision to a higher court, declined to do so. (In fact, the Governor and the Attorney General declined to defend Prop 8 in response to the lawsuit filed by opponents of the initiative.)  Instead, the group that had organized to circulate the petitions that put Prop 8 on the ballot filed the appeal, directed to the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court that reviews the decisions of the lower federal courts in this part of the country.  Notably, the proponents had been permitted by the District Court to intervene as parties and had participated in the trial after state officials declined to do so.

The Ninth Circuit was concerned with the legal “standing” of the proponents of Prop 8 to pursue an appeal. So let’s start by exploring what “standing” is all about.

“Standing” basically means that a litigant has to have a stake in the dispute that derives from a specific interest in the subject matter. For example, if someone trespasses onto my property, I clearly have “standing” to sue the trespasser – it is my specific property right that is being invaded. But my neighbor doesn’t have standing – no legal right of my neighbor has been invaded. Now an inventive lawyer might just try to figure out a way to give my neighbor standing. Here is a far-fetched example – my neighbor might claim that he or she was so terrified by the trespass that he or she suffered some physical or psychic injury as a result. But you can see what a stretch such a claim would be and you can also see that the stretching is for the purpose of creating a particularized, concrete injury specific to the neighbor. (The example actually isn’t as crazy as you might think – the California courts struggled for years regarding the scope of claims for personal injury in the context of family and friends being affected by a loved one getting injured.)

“Standing” is generally easy and relatively clear cut outside of the context of constitutional litigation. Someone who is defrauded clearly has “standing” to sue the person who suckered them out of their money or property. Auto accident victims clearly have “standing” to sue the driver who hit them or their vehicle. A seller has “standing” to sue a buyer who breached a contract; same for a buyer suing the seller for breach of contract.

But doctrines that are fairly clear cut in the context of private litigation can get quite complicated when the courts are called upon to decide constitutional questions. There are generally two reasons for this.

The first involves the unsuitability of the legal system to address issues outside of the determination of private rights or enforcement of the criminal law. The notion that courts have the power to rule the acts of other branches of government, not to mention the will of the people, unconstitutional, is an almost uniquely American judicial doctrine, certainly until very recently.  (The European Court of Human Rights is very much a newcomer to the scene in this regard.) While America inherited much from the English legal system, the English courts never had to deal with a written constitution like ours and never claimed to have the power to nullify the acts of Parliament or the Sovereign. So the American courts had to figure this out over time and to a great degree by trial and error. 

The difficulty described above was compounded by a second problem, involving what is typically termed “federalism,” how a system comprising multiple governments with some overlap in terms of authority deals with matters that, for lack of a more elegant formulation, fall between the cracks. The Prop 8 Case is actually a good example of the tension that can develop between the state and federal systems when an oddball issue arises, as it did in this case.

So the Ninth Circuit saw that it had a problem on its hands because it was not clear that the proponents of Prop 8 had any specific legal right that was being invaded. A committee of ballot proponents may have an interest in seeing its initiative upheld by the courts, but that interest is not really that much more weighty than that of any member of the general public who was unhappy that Prop 8 was being prevented from going into effect. That posed a problem for the Ninth Circuit because “standing” has to be particularized; there is a long line of cases holding that members of the public cannot sue in federal court for violations of the Constitution just because they don’t care for a particular law, court decision or outcome.

The Ninth Circuit, therefore, did something highly appropriate, even commendable. While not every State permits this, California permits the federal courts to “certify” questions of state law to California’s supreme court for guidance. This typically occurs where there is no existing state law or the question is unsettled. While the state supreme court is not required to answer the questions posed to it, or to answer the questions in the manner presented, it is free to do so and the California Supreme Court did just that. In substance, the California Supreme Court said that as far as it was concerned (i.e. as a matter of state law), the proponents of Prop 8 had “standing” in the sense that they had a unique interest in the outcome. The California Supreme Court based its decision on its review of California election law and noted many instances in which California gave the official proponents rights regarding the initiative that they sponsored that were different from the general public.

That was good enough for the Ninth Circuit. The three-judge panel of that court proceeded to decide the Prop 8 appeal on the merits and affirmed the decision of the federal district court holding that Prop 8 was unconstitutional.

The proponents of Prop 8 sought review in the U.S. Supreme Court. The Supreme Court granted their petition for review, but, pointedly, ordered the parties to address the issue of “standing” in addition to the merits. So the resulting decision did not come out of the blue – the parties knew from the outset that “standing” could be an issue.

The Supreme Court issued its decision on June 26 and you can find it on the U.S. Supreme Court website via this link. In a 5-4 decision, the Court held that the Prop 8 proponents lacked “standing” to appeal. Therefore the Ninth Circuit did not have jurisdiction to consider the appeal and neither did the U.S. Supreme Court. The Court directed the Ninth Circuit to dismiss the appeal for lack of jurisdiction. The result was to leave the decision of the District Court intact. Since that decision was to prohibit California from enforcing Prop 8, and assuming that the Supreme Court does not reconsider (more on that later but it’s not a real risk) same sex marriage once again became legal in California.

The majority concluded that the Prop 8 ballot proponents did not have standing because they, unlike State officials, lack any kind of official relationship under which they would be recognized as acting on behalf of the State. In order to arrive at this conclusion, the Court majority had to distinguish cases where the heads of legislative chambers had been accorded “standing” to vindicate state laws when the usual officials charged for doing so, as was the case in California, declined to appeal. The Court majority also held that the decision of the California Supreme Court did not actually confer “standing” on the Prop 8 ballot proponents, emphasizing that “standing” was a question of federal and not state law. The Court majority distinguished a body of much older cases in which “next friends” and “relators” (persons who had been given legal status to vindicate specific governmental rights) had been given standing, essentially avoiding the issue by regarding such cases as having unique historical origins. Other points of distinction are also made, but one definitely gets the sense of the Court picking its way through a minefield of troublesome precedent. (I had the same feeling when I read the Chief Justice's majority opinion in the Affordable Health Care Cases. You can find that analysis here.)

The majority holding that the Prop 8 proponents lacked legal "standing" was comprised of Chief Justice John Roberts and Associate Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. Chief Justice Roberts wrote the majority opinion.

Justice Anthony Kennedy wrote the four justice dissent, joined in by Justices Thomas, Alito and Sotomayor. You can see from the lineup of the majority and minority that the issues here transcended what are normally perceived as “party lines” as there are “liberal” and “conservative” justices on both sides of the debate.

I agree with my eldest son, a fine lawyer, that the dissent has the better of the argument.

The dissent pointedly takes the majority to task for trying to decide the case based on classical agency principles that really do not make sense in the context of constitutional “standing.” The dissent also notes the distortion engaged in by the court majority in trying to avoid the effect of the California Supreme Court’s decision that basically held that the Prop 8 ballot proponents had “standing.” The dissent points out, correctly in my view, that while “standing” is determined by federal law, the legal rights that a litigant possesses are typically defined by state law and the California court has the last word on that issue. The dissent notes the long history of cases that conferred “standing” on whole categories of plaintiffs who had a specific interest in a dispute even though they lacked the status of “agent.”

The dissent also notes, again in my view quite correctly, that the outcome is absurd – an unreviewed trial court decision of a single federal judge becomes the (federal) law of California and the people of California, who, after all, voted in favor of Prop 8, do not even get a chance to have its constitutionality definitively reviewed.

While the Court majority can say that this is a function of a hole in the system (for example in some other states “standing” would be conferred more broadly because of underlying state law as viewed by the majority) it does not sit well and certainly does not reflect well on our legal system.

What the dissent does not say, and this is probably to its credit, is to suggest that the majority is manipulating the rules of standing to avoid deciding a potentially explosive constitutional issue. It so happens that I think this is precisely what is going on, but it is one thing for a commentator to say so and another for a sitting justice to so characterize the court majority (if only for the sake of maintaining civil relations down the road).

Frankly the Supreme Court has manipulated “standing” to avoid making difficult constitutional decisions for years. This is far from the first decision where “standing” has been denied on grounds that are, fairly stated, sketchy. I remember having this reaction as a law student when I first read Warth v. Seldin, 422 U.S. 490 (1975). Warth v. Seldin was a case which denied “standing” to plaintiffs who sought to sue members of a local planning body for allegedly enacting zoning restrictions that effectively prevented persons of low and moderate income from living in the city of Penfield, New York (a suburb of Rochester). Of course in Warth one of the dissents (written by the notably outspoken Justice William O. Douglas) was explicit in its condemnation of the majority for manipulating the outcome through “standing.”

I don’t regard the Prop 8 Case as nearly as egregious. As noted, in the constitutional area, there is actually some wiggle room in terms of determining “standing” as situations can arise, as they did in this case, that do not make for easy categorization (and so much of the law is a matter of pigeon-holing and analogy). I would say of the majority opinion that is just barely makes out an intellectually respectable position on the issue.

So what is really going on here? I am no better (but hopefully no worse) at reading the judicial tea leaves than the next person but the Supreme Court has a history of putting off difficult decisions through the device of denying “standing” or other “prudential” doctrines that achieve much the same result. Often the result is achieved by invoking the provision of Article III of the Constitution (the so-called “Judiciary Article”) that limits the Supreme Court’s jurisdiction to live “cases and controversies.” So cases often get undecided because the controversy is no longer “live” and appeals get dismissed as “moot.” The Court likewise refuses to get involved (at least it says it won’t) in matters of state property, probate and divorce law even though there is nothing in the Constitution that formally prohibits the Court from otherwise exerting its authority in those areas if procedural requirements for bringing a case in federal court are met. Similarly the Court has a judge-made rule that it will not address a constitutional issue if the case can be decided on a narrower basis, under either state or federal law. One rationale for all these “prudential” doctrines is that the Court recognizes that it is an unelected body and that its interventions are often unwelcome and appear to thwart the will of the majority or interfere with the sovereignty of the States. Another, albeit unspoken, rationale is that sometimes the difficult problems of the day go away over time and there is no reason to antagonize powerful constituent interests who already are deeply suspicious of the Court as an undemocratic institution.

In the Prop 8 Case, it is clear that the issue of same sex marriage is slowly, but inexorably, working itself out without the intervention of the Supreme Court. 13 states now permit same sex marriage; polls consistently report that a growing majority of Americans either support, or at least have no great problem, with such marriages. Had the Supreme Court upheld Prop 8, I would have taken a bet that a repeal would have gone on the ballot and that a repeal would have won. So why antagonize people unnecessarily, especially in an era where the Court is already being subjected to scathing criticism (and downright condemnation in some quarters) as a result of its decision in Citizens United. (Readers interested in my analysis and discussion of Citizens United and its ramifications can access that discussion via this link  My post analyzing the latest U.S. Supreme Court decision regarding gun control may also be of interest and can be found here.)

So same sex marriage has returned to California, and the decision has been implemented in record time. This, too, is a bit of a surprise. When the Prop 8 proponents filed their petition for review in the Supreme Court, they also asked the Ninth Circuit for a stay of the District Court’s injunction. Such requests are routinely granted and the Ninth Circuit did precisely that in this case – the stay was conditioned on a timely request for review in the Supreme Court and was to remain in effect if review was accepted until the Supreme Court decided the case.

Normally, when the Supreme Court decides a case, the decision is not implemented immediately. That requires the “mandate” of the Court directing the lower court to carry out the Court’s directions to be issued and to be transmitted to the lower court. Mandate does not issue until the Supreme Court’s decision is “final” and finality can be put off by a timely petition for rehearing. While such petitions are almost never granted, in the normal course the stay issued by the Ninth Circuit would remain in effect until the formalities of seeking review had been concluded. That did not happen here.

Instead, to the surprise of the Governor, the Attorney General, and, for that matter, the Prop 8 proponents and the public at large, the three-judge Ninth Circuit panel that had decided the appeal from the District Court’s order, on its own motion (i.e. by itself) dissolved the stay. This had a number of ramifications.

One is that same sex marriage in California resumed almost immediately. From the point of view of the proponents of Prop 8 this was infuriating and unfair – they were not even given an opportunity to decide whether to make a last ditch attempt to persuade the Supreme Court to reconsider. Nor did they have a chance to consider other legal procedural moves to address a truly odd legal outcome. (My inventive lawyer son and his colleagues at his law firm had come up with some interesting possibilities in that regard – all now moot in light of this swift turn of events.) It also smacks of even more judicial outcome manipulation – not good press for an appellate court already considered by some as excessively activist.

So again the question, what is really going on here? My read of the tea leaves is as follows.

First, the Ninth Circuit’s stay of the injunction pending Supreme Court review was discretionary. The Ninth Circuit did not have to do this in the first place (although if it did not, I would have expected the Supreme Court to have issued such a stay).

Second, there is no particularly good reason to slow things down even further. The odds of a rehearing petition getting anywhere are between (exceedingly) slim and none. When cases arrive at the Supreme Court and review is granted, they are typically given an extraordinary amount of attention by both the lawyers and the justices. The chance of some procedural or other error creeping in to require the Court to reconsider is extraordinarily unlikely. If such a petition was filed, no one knows how quickly the Court would act on it. In a way the Ninth Circuit’s action forces even the hand of the Supreme Court as the more same sex marriages occur in California in the interim, the harder it gets to put the genie back in the bottle.

Third, and perhaps critically, even as the Supreme Court has done, the Ninth Circuit is also saying that it is time to end this particular fight. It does no one good to prolong the agony and any institutional damage that has been done (or which has been avoided) has already occurred. Time to move on.

So that is what I think has happened. Sometimes the Supreme Court makes law (or at least creates outcomes) without actually doing so. I believe this to be such an instance.

Next up (vacation permitting) will be some analysis of either the DOMA decision, or, perhaps the most important of the trilogy, the Supreme Court’s apparent gutting of the Voting Rights Act.

[Ed.  Late note:  Since this blog piece was posted, the Prop 8 proponents asked Justice Anthony Kennedy, in his capacity as Supreme Court Justice supervising the Ninth Circuit, to stay the Ninth Circuit's action dissolving that court's stay of enforcement of the District Court's injunction.  Not surprisingly, that request has been denied.  Here's a link to the AP news account.  In theory the Prop 8 proponents can now approach any of the other Justices, or apply to the full court for the same relief.  Don't hold your breath.]

[Ed.  Further late note:  On Friday, July 12, the Prop 8 proponents filed an original proceeding in the California Supreme Court apparently contending that the District Court's injunction against enforcement of Prop 8 did not apply beyond the litigants specifically named in that action as plaintiffs.  The original proceeding was accompanied with a request for a stay of same sex marriages in California while the case was being considered by the California Supreme Court.  The California Supreme Court requested an expedited "preliminary response" from the State the same day regarding the stay.   The petitioners (the Prop 8 proponents) have until Monday, July 15, within which to reply.  The State has until July 22 to file a "preliminary response" regarding the merits of the original proceeding.    The name of the case is Hollingsworth v. O'Connell (Brown), No. S211990 (Cal. Sup. Ct., filed Jul. 12, 2013).  The California appellate courts are pretty well organized in terms of computer access.  You can find the docket of the case via the following link.  Depending on how far this case progresses, I may do a separate post regarding it as it may well serve as a good illustration of how California's somewhat singular "writ" process operates.]

[Ed.   Further late note:  On Monday, July 15, the California Supreme Court denied the request for an immediate stay.  However the petition remains before the Court and the State (actually Governor Brown as the "real party in interest") has until next Monday, July 22, to respond to the petition.  But for now, at a minimum, same sex marriage remains alive and well in California.]

[Ed.  Further late note.  In yet another attempt to challenge the injunction barring the enforcement of Prop 8, the San Diego County Clerk has filed a petition with the California Supreme Court seeking to stop same sex marriages in California while that court considers his challenge to Governor Brown's executive order directing county clerks to perform same sex marriage ceremonies.  Here is a link to an Associated Press account that was published in SFGate.com.  The name of the case is Dronenburg v. Brown, No. S212172 (filed Jul. 19, 2013).  Here is a link to the California Supreme Court's docket.  The drill is again to require expedited "preliminary responses" on the request for immediate stay/injunction, followed by a somewhat less frenetic briefing schedule on the merits.  Once again, I doubt this will get very far but the weird outcome resulting from the U.S. Supreme Court's decision to deny standing to the Prop 8 proponents is clearly having unintended consequences, including putting the state Supreme Court back in the hot seat.  I'll report in due course if there are any developments worthy of note.]

[Ed.  Further late note.  On July 23, 2013, the California Supreme Court denied the application for an immediate stay/injunction.  The petition will, eventually, be heard on its merits but in the meantime same sex marriage in California will continue unimpeded.  You can see the brief docket entry here.  It should be interesting to see if this latest denial even hits the mainstream media, or, if it does, if it is treated as something more than a blip on the radar.]

[Ed.  Further late (and likely final) note.  On August 14, 2013, the California Supreme Court denied the petition for relief in Hollingsworth v. O'Connell (Brown), No. S211990 (See "late note" of July 12, 2013, and subsequent).  While I plan, some day, to discuss California's somewhat singular "writ" system, now is not the time.  But what matters here is that the first attempt subsequent to the decision of the U.S. Supreme Court to force the California Supreme Court to address the anomaly created by the lack of standing has failed.  Here, again, is the link to the case docket as maintained by the California courts.  What you will not find there is a written opinion explaining the court's action.  "Writ petitions" are often disposed of that way but in a celebrated and controversial case like this, the absence of a written opinion is actually surprising.  No doubt the potentially toxic nature of the subject has had an impact on the state supreme court.  Interestingly, and while I do not recall seeing any press coverage of the event, on August 5, 2013, the San Diego County Clerk, who is the petitioner in the second challenge case,  Dronenburg v. Brown, No. S212172, filed a request to dismiss his writ petition.  That request was granted today (again, for your convenience, here is a link to the California Supreme Court's docket for that case).  So as of this writing there are no pending challenges to the District Court injunction striking down Prop 8 and the path to same sex marriage in California is entirely open. 

My blog piece regarding the second in the trilogy of U.S. Supreme Court cases, the so-called "DOMA" (Defense of Marriage Act) cases is in progress, albeit slow going as a result of the press of other matters and the relative complexity of the subject matter.  But it will get done eventually.  But, barring something new in the way of a court filing, at long last I think this post is complete.]