The Supreme Court and Same-sex Marriage

The Dissent

Justice Antonin Scalia, in one of three dissents in the case, initially focused on the petitioner's lack of standing. See, e.g., id. at *22 (Scalia, J., dissenting). On the merits, Justice Scalia wrote that DOMA, clarifying what constitutes marriage for purposes of federal law, was “a classic purpose for a definitional [statutory] provision.” Id. at *30. He also found the majority's justifications for its ruling “rootless and shifting,” and dismissed the majority's stated limitation on its holding as a “naked declaration” not to be trusted. Id. at *27, *31. On the latter point, Justice Scalia did not mince words, noting that “[t]he only thing that will 'confine' the Court's holding is its sense of what it can get away with.” Id. at *31.

Chief Justice John Roberts agreed with Justice Scalia that the Court lacked jurisdiction to decide the case and that Congress had acted constitutionally in passing DOMA. Id. at *18 (Roberts, C.J., dissenting). He also noted that, while the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples[,] [t]hat issue ' is not before us in this case ' .” Id. at *20. Justice Samuel Alito, in his dissent, concluded that Congress had not overstepped constitutional bounds in creating a federal law definition of marriage, urging that any change on a question as fundamental as the definition of marriage “should be made by the people through their elected officials.” Id. at *34 (Alito, J., dissenting).

Proponents of Prop 8 Have No Standing

In Hollingsworth, Proposition 8 had amended the California Constitution “to provide that '[o]nly marriage between a man and a woman is valid or recognized in'” that state. Id., 2013 WL 3196927, at *4. A federal district court had held that Proposition 8 was unconstitutional, and state officials declined to take an appeal. The petitioners before the Supreme Court, the original proponents of Proposition 8, had been permitted by the trial court to intervene in the case and defend the initiative. On appeal, the Ninth Circuit upheld the district court ruling. But the Supreme Court found that petitioners had no standing and that neither the Court nor the Ninth Circuit had authority to decide the case on the merits. The Court thus vacated the judgment of the Ninth Circuit and remanded the case to that court with instructions to dismiss the appeal. Id. at *14.

Chief Justice Roberts, writing for the Court, noted that to have standing, a litigant must seek relief for an injury that affects the litigant in a “personal and individual way” and must possess a direct stake in the outcome of the case. But he found that the petitioners had only an insufficient “generalized grievance” to vindicate the constitutionality of the ballot initiative. He concluded that the 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” and declined to do so for the first time here. Id. at *14.

Justice Kennedy, dissenting, urged that California had the right to empower the petitioners to defend one of its state laws in federal court, noting that the California Supreme Court had held that state law afforded the petitioners “'the authority ' to assert the state's interest in the validity of the initiative' when State officials decline to do so.” Id. at *16 (Kennedy, J., dissenting). He concluded that the “State Supreme Court's definition of proponents' powers is binding on this Court” and “sufficient to establish the [requisite] standing and adversity under Article III” of the federal Constitution. Id. at *14.'

By ordering the Ninth Circuit to dismiss the appeal in the case, the Court let stand the district court's original ruling in the case, striking down Proposition 8 as unconstitutional. Thus, though the majority in the minds of many had sidestepped a ruling on the merits in the case, the ruling will result in the resumption of legal same-sex marriages in California.

Frank Gulino, a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

In late June, the U.S. Supreme Court handed down two historic decisions involving the issue of same-sex marriage. In United States v. Windsor, No. 12-307, 2013 WL 3196928 (U.S. June 26, 2013), the Court held unconstitutional section 3 of the Defense of Marriage Act (DOMA), which limited marriage to heterosexual unions of one man and one woman for purposes of federal law. In a 5-4 decision, the Court held that DOMA's definition of marriage was unconstitutional. In Hollingsworth v. Perry, No. 12-144, 2013 WL 3196927 (U.S. June 26, 2013), the Court held that it did not have jurisdiction to determine the constitutionality of Proposition 8, a 2008 California ballot initiative that amended that state's Constitution to define marriage as the union of a man and a woman. The ruling, also a 5-4 decision, let stand a lower court decision that had struck down Proposition 8 as unconstitutional.”

DOMA Violates Same-sex Spouses' Equal Protection Rights

In Windsor, in an opinion by Justice Anthony Kennedy, the Court held that DOMA's definition of marriage “violates basic due process and equal protection principles applicable to the Federal Government.” Id., 2013 WL 3196928, at *15. The Court went on to declare that “[t]he avowed purpose and practical effect of [DOMA] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States,” and that “DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Id. at *15-*16. Holding that the law deprived the “liberty of the person” guaranteed by the Fifth Amendment to those “joined in same-sex marriages made lawful by the State[,]” the majority confined its holding to situations where same-sex partners are in marriages legal under state law. Id. at *18.

The Dissent

Justice Antonin Scalia, in one of three dissents in the case, initially focused on the petitioner's lack of standing. See, e.g., id. at *22 (Scalia, J., dissenting). On the merits, Justice Scalia wrote that DOMA, clarifying what constitutes marriage for purposes of federal law, was “a classic purpose for a definitional [statutory] provision.” Id. at *30. He also found the majority's justifications for its ruling “rootless and shifting,” and dismissed the majority's stated limitation on its holding as a “naked declaration” not to be trusted. Id. at *27, *31. On the latter point, Justice Scalia did not mince words, noting that “[t]he only thing that will 'confine' the Court's holding is its sense of what it can get away with.” Id. at *31.

Chief Justice John Roberts agreed with Justice Scalia that the Court lacked jurisdiction to decide the case and that Congress had acted constitutionally in passing DOMA. Id. at *18 (Roberts, C.J., dissenting). He also noted that, while the Court “may in the future have to resolve challenges to state marriage definitions affecting same-sex couples[,] [t]hat issue ' is not before us in this case ' .” Id. at *20. Justice Samuel Alito, in his dissent, concluded that Congress had not overstepped constitutional bounds in creating a federal law definition of marriage, urging that any change on a question as fundamental as the definition of marriage “should be made by the people through their elected officials.” Id. at *34 (Alito, J., dissenting).

Proponents of Prop 8 Have No Standing

In Hollingsworth, Proposition 8 had amended the California Constitution “to provide that '[o]nly marriage between a man and a woman is valid or recognized in'” that state. Id., 2013 WL 3196927, at *4. A federal district court had held that Proposition 8 was unconstitutional, and state officials declined to take an appeal. The petitioners before the Supreme Court, the original proponents of Proposition 8, had been permitted by the trial court to intervene in the case and defend the initiative. On appeal, the Ninth Circuit upheld the district court ruling. But the Supreme Court found that petitioners had no standing and that neither the Court nor the Ninth Circuit had authority to decide the case on the merits. The Court thus vacated the judgment of the Ninth Circuit and remanded the case to that court with instructions to dismiss the appeal. Id. at *14.

Chief Justice Roberts, writing for the Court, noted that to have standing, a litigant must seek relief for an injury that affects the litigant in a “personal and individual way” and must possess a direct stake in the outcome of the case. But he found that the petitioners had only an insufficient “generalized grievance” to vindicate the constitutionality of the ballot initiative. He concluded that the 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” and declined to do so for the first time here. Id. at *14.

Justice Kennedy, dissenting, urged that California had the right to empower the petitioners to defend one of its state laws in federal court, noting that the California Supreme Court had held that state law afforded the petitioners “'the authority ' to assert the state's interest in the validity of the initiative' when State officials decline to do so.” Id. at *16 (Kennedy, J., dissenting). He concluded that the “State Supreme Court's definition of proponents' powers is binding on this Court” and “sufficient to establish the [requisite] standing and adversity under Article III” of the federal Constitution. Id. at *14.'

By ordering the Ninth Circuit to dismiss the appeal in the case, the Court let stand the district court's original ruling in the case, striking down Proposition 8 as unconstitutional. Thus, though the majority in the minds of many had sidestepped a ruling on the merits in the case, the ruling will result in the resumption of legal same-sex marriages in California.

Frank Gulino, a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.