June 26, 2013 -- The Supreme Court declined to rule on the constitutionality of California's Proposition 8 today that bans gay marriage, and instead dismissed the case on procedural grounds. The court held that supporters of the ballot initiative—who stepped in to defend Prop 8 when California officials refused to do so—did not have the legal right to be in court.
The ruling leaves in place a lower-court decision that struck down the law. Same-sex marriage will most likely resume in California, but the timing is unclear.
Chief Justice John Roberts writing for 5-4 said, "petitioners did not have standing to appeal the District Court's order."
"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."
Roberts was joined by Justices Scalia, Ginsburg, Breyer and Kagan.
Kennedy wrote a dissent and said, "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."
Kennedy was joined in dissent by Justices Thomas, Alito and Sotomayor.
Charles J. Cooper, a lawyer for the original supporters of Prop 8, argued in court papers that the California Supreme Court gave the sponsors the state's authority to defend the law and the U.S. Supreme Court should respect that.
Opponents of Prop 8 countered that "standing" requires an injury and proponents of Prop 8 cannot show they will be harmed if same-sex couples marry.
The case concerned a challenge to Proposition 8, the controversial California ballot initiative passed in 2008 that defines marriage as between one man and one woman.
Because California officials declined to defend the law in court, lawyers for the original sponsors of the initiative--a group called Protectmarriage.com--stepped in to do so. Lawyer Charles J. Cooper argued that Californians who voted in favor of Prop 8 opted "in good faith" to preserve the traditional definition of marriage because they believe it continues to meaningfully serve important societal interests. Cooper told the justices that the issue was "agonizingly difficult" but that the government has a societal interest in traditional marriage to encourage "responsible procreation." Cooper points out that California has expansive domestic partnership laws that provide gays and lesbians with "comprehensive civil rights protection."
Cooper told the court, "Our submission is that same-sex couples and opposite-sex couples are simply not similarly situated."
Theodore B. Olson and David Boies represented two same-sex couples who challenged Prop 8.
They asked the court to find a fundamental right to gay marriage in the Constitution. Olson told the justices during arguments in March that Prop 8 "walls off gays and lesbians from marriage, the most important relation in life" and he said it had the effect of "stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay."
Solicitor General Donald B. Verrilli filed briefs in support of opponents of Prop 8. The government argued in court that laws that ban gay marriage should be subject to heightened scrutiny from the courts. Verrilli said that Prop 8's denial of marriage to same-sex couples, particularly where California at the same time grants same-sex partners all the substantive rights of marriage, is a violation of equal protection.
Before the justices got to the merits of the case, they had to determine whether the proponents of Prop 8 had the legal right to be in court in the first place. Cooper argues that the California Supreme Court gave the sponsors the states' authority to defend the law and that the U.S. Supreme Court should respect that. Olson said Protectmarriage.com does not have the necessary injury that would satisfy standing.