Straight Talk on Gay Marriage: Prop 8 Decision

Last week the Supreme Court issued 2 opinions on gay marriage. While the DOMA opinion sent LGBT advocates into tearful cheers, the decision regarding California’s Proposition 8 left court watchers scratching their heads. This post will explain the opinion and what it means for LGBT couples in California and throughout the nation.

In Hollingsworth v. Perry, the Supreme Court had an opportunity to answer whether gay and lesbian couples had a constitutional right to marry. It also had a chance to say clearly that states have the final say over what counts as a marriage. It even could have ruled that the state had a compelling interest in defining marriage as 1 man and 1 woman. It did none of these things. Instead it avoided the controversy citing a procedural problem.

When the Plaintiffs filed their lawsuit they named as Defendants several officials, including the Governor and the Attorney General, responsible for enforcing the voter initiative banning gay marriage. Every named defendant refused to defend the law. The District Court judge allowed the official proponents of the voter initiative to “intervene” and defend the suit. They did, but the District Court ruled in the Plaintiff’s favor anyway and ordered the defendants not to enforce the initiative-turned-law.

The California elected officials didn’t appeal, but the initiative’s proponents did. The Supreme Court decided they couldn’t do that because nothing in the ruling harmed the proponents individually, and nothing the Court could order would improve their situation. The Court reasoned that, for legal purposes, nothing distinguished the proponents from any other California citizen under the law.

It didn’t matter that the California Supreme Court had ruled the proponents had authority to represent the state’s interest in the law. In the eyes of the 5-4 majority led by Chief Justice Roberts, nothing the state could do short of elect the proponents as agents, would give them “standing” to file the appeal. Federal standing was not something that could be granted by a state court. To represent the state, the proponents had to be elected officials who answered to state government.

The unusual grouping of Justices Kennedy, Thomas, Alito, and Sotomayor, dissented. They believed it was up to California to decide who could enforce its laws. It had done so through its State Elections Code and the California Supreme Court opinion. The dissent pointed out voter initiatives circumvent elected officials. The voters have an interest in having these laws defended in court, even if their elected officials refuse.

So what does all this mean? Because the proponents did not have the authority to appeal, the Court vacated (threw out) the Ninth Circuit Court of Appeals decision and told that court to dismiss the appeal. That means the District Court ruling that the ban on gay marriage is unconstitutional will be final. California gay and lesbian couples will be allowed to marry again, but the Supreme Court passed up the chance to change the lives of LGBT couples across the nation.

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  1. What’s the Deal With Gay Adoption? | Schmidt Law Services

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