Analysis of Today's Same-Sex Marriage Decisions-- Installment 3: The Amazing Power of A Decision Based On Standing

In Hollingsworth v. Perry today, the U.S. Supreme Court was able to reach a result which, but for the case's odd procedural posture, would seem impossible.  Chief Justice Roberts writing for the majority handed down an opinion which has the effect of re-instituting same-sex marriage in California, but only there.  By avoiding any broader holding, the Court escaped the risk of creating the same kind of religiously-grounded political controversy that has extended for decades after Roe v. Wade. At the same time, it places no barriers in the way of supporters of marriage equality elsewhere who may now litigate the broader constitutional issues. Indeed, as Justice Scalia suggested, in United States v. Windsor the majority opinion gave potent ammunition to proponents of marriage equality who will likely press the constitutional issue if the political process in state legislatures bogs down.

In California, from the beginning state executive officials refused to defend Proposition 8-- a state constitutional amendment adopted by voters through the initiative process.  However when Proposition 8 was challenged in federal district court, the court permitted the official initiative proponents to intervene as defendants.  Reaching the merits, the district court enjoined enforcement of Proposition 8. That placed the initiative proponents in the posture of appellants, and it is that role the U.S. Supreme Court held they could not assume:

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.

The Supreme Court vacated the 9th Circuit's opinion, remanded the case and instructed the 9th Circuit to dismiss the appeal from the district court for lack of jurisdiction. Thus the district court's opinion invalidating Proposition 8 stands as the operative one on the merits.  The Supreme Court was silent as to whether it was error for the district court to allow initiative proponents to intervene as defendants.  If they had not intervened. presumably the court would still have invalidated Proposition 8 since no one would have been defending it.

Hollingsworth was a 5-4 decision, but with an odd alignment of justices.  The dissent arguing in favor of standing was written by Justice Kennedy, and joined by Justices Thomas, Alito and Sotomayor.  It seems likely that if the Court had reached the merits of the Proposition 8 challenge, these 4 justices would have been equally divided on opposite sides.

The case raises the broader question of when it is appropriate for state officials to refuse to defend the constitutionality of a state law, or a state constitutional provision.  Their oath to uphold the Constitution of the United States presumably obligates them to refuse to defend unconstitutional provisions. However, in states like California with broad initiative provisions, this case suggests a route by which initiatives adopted by popular vote can be effectively eliminated by a legislature and executive who disagree with the initiative.  An opponent of the initiative need merely file a federal lawsuit challenging its constitutionality under federal law, and existing state officials need merely to refuse to defend the initiative's legality. That spectre is reflected in the dissent's observation:

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.