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Supreme Court Finds No Standing To Appeal Same-Sex Marriage Ruling

WASHINGTON, D.C. - (Mealey's) Proponents of California's Proposition 8 banning same-sex marriage did not have standing to appeal a ruling finding the ballot initiative unconstitutional, the U.S. Supreme Court held June 26 in a 5-4 ruling (Dennis Hollingsworth, et al. v. Kristin M. Perry, et al., No. 12-144, U.S. Sup.). [ subscribers may access Supreme Court briefs for this case and read the enhanced opinion].

In an opinion written by Chief Justice John G. Roberts Jr., the high court vacated and remanded a ruling by the Ninth Circuit U.S. Court of Appeals allowing two citizens' groups to appeal when the named defendants in the action declined to defend the proposition in federal court.
Constitutional Amendment

Proposition 8, passed by California voters in 2008, amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California."

Two same-sex couples, Kristin M. Perry and Sandra B. Stier and Paul T. Katami and Jeffrey J. Zarrillo, filed suit in the U.S. District Court for the Northern District of California, challenging the constitutionality of the proposition under due process and equal protection grounds. The suit named the state attorney general and other state and local officials as defendants. When the state officials refused to defend the statute, the District Court allowed the official proponents of the proposition, Protect, led by Dennis Hollingsworth, and Campaign for California, to intervene.

Judge Vaughn Walker found the proposition unconstitutional and enjoined the California officials from enforcing it. When the state officials elected not to appeal, the proponents filed an appeal with the Ninth Circuit. The appeals court ordered the parties to brief and argue the issue of standing, then certified the standing question to the California Supreme Court, which concluded that the proponents possessed standing. Based on that ruling, the Ninth Circuit entertained the appeal and affirmed the District Court on equal protection grounds. The proponents successfully petitioned the high court for review.
No Unique Role

Vacating and remanding the Ninth Circuit ruling, the high court majority rejected the proponents' argument that the California Constitution and state election laws provide them with a unique role in the initiative process that supports a finding of standing. Instead, the majority said, the proponents' role ended once the proposition became law.

"But once Proposition 8 was approved by the voters, the measure became 'a duly enacted constitutional amendment or statute,'" the majority said, citing the state Supreme Court's ruling in Perry v. Brown (52 Cal. 4th 1116). "Petitioners have no role - special or otherwise - in the enforcement of Proposition 8."

The majority also rejected the proponents' contention that they may assert the state's interest in appealing the unconstitutionality ruling on the state's behalf, finding that there has been no showing of injury in fact.

"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," the majority said. "We decline to do so for the first time here."

Chief Justice Roberts' opinion was joined by Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan.

In a dissent, Justice Anthony M. Kennedy, joined by Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor, said that the California Supreme Court's ruling on the standing issue is dispositive.

"[T]he State Supreme Court's definition of proponents' powers is binding on this Court," the dissenters said. "And that definition is fully sufficient to establish the standing and adversity that are requisite for justiciability under Article III of the United States Constitution."

The majority's ruling "does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials - the same officials who would not defend the initiative, an injury the Court now leaves unremedied," the dissenters said. Further, the dissenters said, the decision has implications for the 26 other states that use the initiative or referendum system.

The proponents are represented by Andrew P. Pugno of the Law Offices of Andrew P. Pugno in Folsom, Calif., David Austin R. Nimocks and James A. Campbell of the Alliance Defending Freedom in Washington and Charles J. Cooper, David H. Thompson, Howard C. Nielson Jr. and Peter A. Patterson of Cooper and Kirk in Washington. Perry, Stier, Katami and Zarrillo are represented by David Boies of Boies, Schiller & Flexner in Armonk, N.Y., Theodore B. Olson, Matthew D. McGill and Amir C. Tayrani of Gibson, Dunn & Crutcher in Washington and Theodore J. Boutrous Jr., Christopher D. Dusseault, Theane Evangelis Kapur and Joshua S. Lipshutz of Gibson, Dunn & Crutcher in Los Angeles.

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