Supreme Court on same sex marriage
In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384. Later that year, California voters passed the ballot initiative at the center of the dispute, known as Proposition 8. That proposition amended the California Constitution to provide that “only marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5.
Shortly thereafter, the California Supreme Court rejected a procedural challenge to the amendment, and held that the Proposition was properly enacted under California law. Strauss v. Horton, 46 Cal. 4th 364, 474–475, 207 P. 3d 48, 122 (2009). According to the California Supreme Court, Proposition 8 created a “narrow and limited exception” to the state constitutional rights otherwise guaranteed to same-sex couples. Under California law, same-sex couples have a right to enter into relationships recognized by the State as “domestic partnerships,” which carry “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law as are granted to and imposed upon spouses.” Cal. Fam. Code Ann. §297.5(a) (West 2004). In In re Marriage Cases, the California Supreme Court concluded that the California Constitution further guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the right to have that marriage “officially recognized” as such by the State. Proposition 8, the court explained in Strauss, left those rights largely undisturbed, reserving only “the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.”
Respondents, two same-sex couples who wished to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout the litigation. The District Court allowed petitioners, the official proponents of the initiative, to intervene to defend it. The District Court declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and directing the official defendants that all persons under their control or supervision shall not enforce it. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal. 2010).
Those officials elected not to appeal the District Court order. When petitioners did, the Ninth Circuit asked them to address “why this appeal should not be dismissed for lack of Article III standing.” Perry v. Schwarzenegger. After briefing and argument, the Ninth Circuit certified a question to the California Supreme Court: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” Perry v. Schwarzenegger, 628 F. 3d 1191, 1193 (2011).
The California Supreme Court agreed to decide the certified question, and answered in the affirmative. Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, has standing to defend the constitutionality of its laws, and States have the prerogative, as independent sovereigns, to decide for themselves who may assert their interests. All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.
On the merits, the Ninth Circuit affirmed the District Court. The court held the Proposition unconstitutional under the rationale of Romer v. Evans, 517 U. S. 620 (1996). The Ninth Circuit concluded that “taking away the official designation” of “marriage” from same-sex couples, while continuing to afford those couples all the rights and obligations of marriage, did not further any legitimate interest of the State. Proposition 8, in the court’s view, violated the Equal Protection Clause.
Supreme Court granted certiorari to review that determination, and directed that the parties also brief and argue “Whether petitioners have standing under Article III, §2, of the Constitution in this case.”
The Supreme Court observed that after the District Court declared Proposition 8 unconsti-tutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress- they had won—and the state officials chose not to appeal. The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” [Defenders of Wildlife]. He must possess a “direct stake in the outcome” of the case. [Arizonans for Official English]. Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law. The Supreme Court observed that it had repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.
The Supreme Court held that without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else. They assert that even if they have no cognizable interest in appealing the District Court’s judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a fundamental restriction on the Court’s authority that in the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties. Powers v. Ohio, 499 U. S. 400, 410 (1991). Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the state, and they plainly did not qualify as such.
The Supreme Court had never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. Because petitioners had 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 was vacated, and the case was remanded with instructions to dismiss the appeal for lack of jurisdiction.