Hollingsworth
vs Perry arose out of
California's Proposition 8 at the 2008 General Election which
amended the state's constitution to take away the right of
Californians to marry the person of their choice and welded the so
called 'traditional marriage' model into the California's
constitution. There are three things that SCOTUS could do with this
case.
First
of all it could render a global decision that either ties marriage to
privacy rights like the court's prior decisions on birth control
(Griswold vs Connecticut)
and a woman's right to choose whether she will carry a pregnancy to
term (Roe vs Wade)
or on the validity of statutes that outlawed interracial marriages
(Loving vs Virginia)
and hold that the states cannot interfere with personal life choices
on either or both of those grounds . The Court could adopt a global
decision denying gay and lesbian people equal access to the legal
benefits of marriage. If the courts adopts the view(s) of the
petitioner proponents of the traditional model it will have some
difficult writing and persuading to do in the face of cases like
Loving vs Virginia
that held that laws against interracial marriage violated the
Fourteenth Amendment's equal protection clause. There will also be
a major PR issue reconciling a denial of marriage equality based on
the existence of non-marriage fixes such as California's Registered
Domestic Partner statute which gives RDPs all the rights,
responsibilities and benefits of marriage other than the designations
husband and wife while ignoring what SCOTUS said about the separate
but equal fiction cobbled onto Fourteenth Amendment jurisprudence by
Plessy vs Ferguson:
essentially that it was nonsense. A decision adopting the positions
of either the Petitioners or the Respondents will be of great scope
and will go to to the heart of how society is organized is so
fundamental that it should not be by a narrow one vote majority but
i should be unanimous. Chief Justice Warren realized that and the
great school desegregation case Brown
vs Board of Education was a
unanimous decision. We should ask no less of the Court in rendering
such a major case as this one. If the marriage equality case is
rendered by a less than unanimous Court it will suffer the same as
Roe: continual
attack by partisans on the losing side of the case. Some that will
divide the Nation for decades to come. I think that Justice Kennedy
who has been very understanding of the the issues involved in gay
rights litigation and who is generally agreed to be the 'swing vote'
will withhold his vote to render any 5-4 decision in favor of
nationwide marriage equality. I also suspect that Chief Justice
Roberts will also not want to lend his vote to a narrow 5-4 decision
holding for the proponents of Proposition 8.
I doubt that either side in this great dispute can muster the five
votes necessary for for either such earth-shaking nationwide
decision.
Another
possible outcome would be for the SCOTUS to dismiss certiorari on
lack of standing grounds under Article III of the Constitution. A
dismissal on this basis would effectively uphold Proposition 8
because it would vacate the Court of Appeals decision previously
filed in the case and it would vacate the decision and judgment of
the District Court declaring Proposition 8 to be unconstitutional.
The reason for this is that if the petitioner at SCOTUS did not have
standing to ask for certiorari in the Supreme Court it also would be
lacking, ipso facto,
in both the Ninth Circuit appeal and in the District Court lawsuit as
well. Those cases would have to be dismissed also. Federal courts
are almost without exception courts of what is called “limited
jurisdiction” and the judicial power of the United States has to
affirmatively and expressly appear in Article IIII or the federal
judiciary is without power to act at all in the case. A finding there
is no standing would effectively end all of the attacks on
Proposition 8. I would think that this view would have a chance of
prevailing but for the fact that the original panel of 9th
Circuit judges certified a question of standing under state law to
the California supreme court and that court unanimously held that in
a case where California's constitutional officers, the Governor and
the Attorney General, who are charged by law with defending an
initiative measure enacted by the electors fail and refuse to defend
the act under attack because they believe it is unconstitutional that
the proponents of the measure have standing under California law to
defend the measure in state courts. That is close to but not
identical with Article III standing. In California's trial court
system, the superior court is a court of general jurisdiction that
has original power to hear and decide any and all cases except those
which the legislature has been expressly removed from the superior
court's jurisdiction so that the superior court can not hear and
determine the case. The federal district courts being courts of
limited jurisdiction only have the power to hear and determine cases
over which it has been expressly granted jurisdiction either by the
Constitution or Congress. The plaintiffs, Perry et al in the federal
court lawsuit brought their case in federal court because they urged
that Prop 8 violated the Equal Protection Clause of the 14th
Amendment therefore the district court had jurisdiction because it
was a 'federal question'. The also asserted that they had Article
III standing because they had skin in the game and alleged that it
was their
federal constitutional rights that were being denied. The same cannot
be said for the proponents of Prop 8. Their interest in this case,
their skin in the game so to speak was more akin to the interest that
every citizen and taxpayer has in seeing that the laws are enforced.
The courts have always held that the interest that each of us
possesses in that regard is so minuscule that it's non-existent and
does not confer Article III standing. The Court could find that
because the proponents of Prop 8 could allege no particular injury to
themselves they did not have standing to defend the case in federal
court. SCOTUS to dismiss on standing grounds would have to do either
one of two things. Either it would have to distinguish standing as
discussed by the state supreme court and found to exist in these Prop
8 proponents as different from Article III standing. That could be
done but it might appear to the public to be a nonsensical exercise
in the parsing of words and thus adversely affect the moral authority
of SCOTUS. The other supporting logic in such a standing opinion is
that SCOTUS would just be interfering with the judgment on the
certified question of state law much like SCOTUS did in 2000 in Bush
vs Gore when it overturned
the decision of the Florida supreme court on the question of who won
the state's electoral votes. The illogic of that decision has
troubled SCOTUS and its moral authority for the last 13 years much
like it was a bell tied to the tail of a dog or a cat. Based on these very real considerations
I think that SCOTUS will not adopt this position and essentially
follow the lead of the California court on the standing issue or just
ignore the issue entirely.
The
third possible outcome and the one I believe will prevail as to
Proposition 8 is that SCOTUS will in fact DIG the case. Certiorari
is a discretionary writ. It is not an appeal because generally there
is no right of further appeal from an adverse decision in an appeal from the
district court. The court of appeal in this case had exclusive
appellate jurisdiction. The only way Prop 8 proponents could
launch themselves into the Supreme Court was to convince four of the nine
justices to issue a Writ of Certiorari. The only thing required for
a grant of certiorari is the affirmative vote of four of the nine
justices. Five justices may later say that they don't' want to hear
the particular case for whatever reason. DIG is lawyerese for
Dismissing Certiorari as
Improvidently Granted. The
effect of DIGing the case would be to reinstate the opinion of the
9th
Circuit upholding the decision of the District Court in declaring
Prop 8 to be unconstitutional. The reason for this is quite simple
and involves no effort to distinguish anything from anything else as
a dismissal for lack of Article III standing would require. The case
as litigated in the San Francisco district court involved a simple
fact pattern. California's supreme court found under the California
constitution that marriage is a fundamental right and that denying same gendered people the right to
intermarry was an interference with a fundamental right supported by neither
the required compelling state interest nor even the lesser standard
of a rational basis. Proposition 8 six months after the California
supreme court's 4-3 decision in The
Marriage Cases
holding that marriage equality existed in California later
removed that right and declared that in California only opposite
gendered people would intermarry. Proposition 8 was held valid by a
subsequent ruling of the California court and there was no discussion
of any federally guaranteed right in either opinions of the
California court. The issue presented to the district court by the
plaintiffs and later to the circuit court on appeal was a question of whether
California's doing what it did in November of 2008 was lawful under
the US Constitution. Since Proposition 8 was passed public opinion in
California now shows a substantial majority in favor of marriage
equality. Furthermore the last four times that the issue was on the
ballot anywhere in this nation the electorate has supported marriage
equality in all four of those contests. SCOTUS knows this. They are
not going to ignore this march toward equality. They are going to
want to see it proceed. Since the facts of Hollingsworth
are unique in this dispute and really only apply to the California
fact pattern it really should only apply within California and to
the facts and procedural history of this case, DIGing the case would
cause minimal damage to the proponents of Prop 8 and achieve some
justice at least in California. It would also allow the progress of
democratization of our society to grow and prosper.
Thus
I suspect that SCOTUS is going to DIG the Proposition 8 case and
allow everyone to claim to be the victor.
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