Dr. Jillian T. Weiss

The Hollingsworth v. Perry Decision Explained

Filed By Dr. Jillian T. Weiss | June 27, 2013 10:00 AM | comments

Filed in: Marriage Equality, Politics
Tags: California, DOMA, gay marriage, Hollingsworth v. Perry, marriage equality, Prop 8, same-sex marriage, Supreme Court explained

As I explained in my last post, the Supreme Court issued two opinions. The first, Windsor v. United States, ruled that the Defense of Marriage Act, DOMA, is unconstitutional, and that legally-married same-sex couples are entitled to equal treatment under federal law. bigstock-Lose-your-heart-29620415.jpgFor example, they must be treated like all other married couples with regard to income taxes and Social Security benefits.

This case only struck down Section 3 of DOMA, which addresses the federal government's treatment of married same-sex spouses. Section 2 remains, which permits states to ignore the effect of same-sex marriages from other states. Various LGBT organizations have banded together to create a series of fact sheets on 14 areas of federal law, providing detailed information about how the DOMA ruling will impact immigration, taxes, social security, Medicaid, Medicare, veterans, employees, military spouses, and much more.

In the second case, Hollingsworth v. Perry, two same-sex couples filed a constitutional challenge to Proposition 8 - which nullified their California marriages - in federal court in California. The District Court found Prop 8 unconstitutional.

California government officials agreed that Prop 8 is unconstitutional, and so refused to appeal the decision. Under California law, official proponents of Proposition 8 - private parties who proposed the ballot initiative - were permitted to step in to the appeal. The Supreme Court today rules that, under federal law, private parties cannot replace the government officials duty-bound to act for the state in a federal lawsuit.

The Ninth Circuit Court of Appeals decision is vacated in favor of the District Court opinion. Thus, California has marriage equality.

Interestingly, the Hollingsworth opinion, while resulting in nothing more than a dismissal of the appeal, is far longer than the groundbreaking Windsor opinion. That's because the Supreme Court really didn't want to have to decide the issues raised there, and had to engage in some serious mental gymnastics to find a way to kick it out of court. As they say of arguments in academia, the disputes are so bitter because the stakes are so small.

So what does it all mean? It's all explained after the break.

The Hollingsworth Plaintiffs Had Standing To Bring The Lawsuit

The Supreme Court acknowledged that these private proponents were properly permitted to intervene in the case before the trial court. Indeed, they could hardly say otherwise, since the California Supreme Court was asked whether California law permitted this substitution of interests. The California Supreme Court said yes, and the District Court was well within its rights to accede to the substitution. After all, if the substitution were not permitted, then the plaintiffs who sought to be married would immediately win by default. Thus, it upheld the interests of the State to have somebody defend the law, even if the official California government wouldn't.

The Prop 8 Proponents Did Not Have Standing To File A Notice of Appeal

When the United States District Court issued a judgment saying that Proposition 8 was unconstitutional, the private proponents naturally wanted to appeal that ruling. But allowing them to come into the trial court and mount a defense in lieu of the State of California is one thing; saying that they have the right to file a federal notice of appeal at the federal courthouse is quite another.

For example, let's say Mr. X, a state government official, gets sued in his individual and official capacities for rear-ending Mr. Y in an auto accident. (Yes, I know this analogy is imperfect, but it's the best I could do on short notice.) Mr. X, however, is hospitalized and, though he's quite able to talk to lawyers and engage in a defense, feels a bit guilty and would really rather settle the case.

"Nonsense!" says Mr. X's mother, and she engages a lawyer to mount a defense of the case. X, despite being a grown man quite capable of making up his mind, decides, a little reluctantly, to let her do it. The Court can't tell Mrs. X that she's not allowed to mount a defense of her son at trial. After all, the son is okay with that, and is not saying no.

But then Mr. X loses the case. He is ordered to pay a sum of money. He decides that he'd rather pay the money and be done with it. Mrs. X, his mother, adamantly insists that he appeal the ruling, and he refuses.

Mrs. X signs a notice of appeal and brings it to the courthouse. The court clerk looks at it, sees that Mrs. X signed it, and asks, with good reason, "And just who are you?"

"I'm Mr. X's mother!" she replies, confident that settles the matter. The Court Clerk promptly hands it back to her, and says that a note from your mother doesn't work at the courthouse. That's essentially the first part of what happened here.

There are a few twists, however. After the court clerk handed the notice of appeal back to Mrs. X, she stomps into the chambers of her old friend, the Appeals Judge. He looks at her over his reading glasses with a stern look, but she is not deterred. "Let me file this notice of appeal!" she thunders.

"Hmm," says the Judge, "Because Mr. X is a state government official, I think you might need official permission under California law to do that. I will have to ask my friends at the California Supreme Court to let me know whether this is kosher."

He then sends a note to the state supreme court, asking for their opinion. They send back a note saying that it's okay with them. So the appeal is on, and the circus begins with Mr. X, Mrs. X and poor Mr. Y's broken bumper.

The federal appeals court hears the various arguments, assuming that if it's okay with the California Supreme Court for Mrs. X to step in and appeal, that it must be okay as to both state law and federal law. It issues a ruling. That ruling is appealed to the United State Supreme Court, which promptly asks of Mrs. X the same question that the appeals court clerk asked, "And just who are you?"

Turns out that the okay of the California Supreme Court squared it with the state law, but not with the federal law. The federal appeals court made an error when it said that Mrs. X could file the appeal on behalf of her son. While it's true that she had permission to do it from the state authorities, she was missing something else. What was she missing?

Standing In The Rain

She was missing "standing," a requirement of Article III of the United States Constitution, the part that deals with federal courts. "Standing" means that a person who files a complaint with the courts must have "suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision."

In other words, the party must be seeking a remedy for "a personal and tangible harm." What harm did Mrs. X suffer? It wasn't her bumper that was broken. It wasn't she that had a money judgment entered against her. Of course, she is fighting mad that her son was found liable.

The Supreme Court, however, is not impressed. "The presence of a disagreement, however sharp and acrimonous it may be, is insufficient by itself to meet Article III's requirements."

This is to prevent all sorts of interlopers from bringing lawsuits on every darn thing. We don't want the Society For Getting Into Your Business to be suing you for that enormous Christmas display that keeps the neighbors awake at night. If the neighbors aren't complaining, then there is no standing and no lawsuit. Otherwise, the powers of the political branches - Congress and the President - could easily be taken over by the Society For Getting In Your Business, and the courts, every time they didn't like a law, regulation or court ruling. So there is a good reason to demand "standing" in a court case.

Most court opinions on "standing" deal with whether the plaintiff - the person who files a complaint in court - has standing to bring the lawsuit in the first place. Clearly, in Hollingsworth, the plaintiffs, who wanted to get married but were denied by the State of California because of Proposition 8, had a personal and tangible harm traceable to the State's conduct, and so they had "standing." But "standing" is required all throughout the lawsuit, including appeals.

When a person files a notice of appeal, they, too, must have "standing." In Hollingsworth, the State could have had standing, because it's the State's duty to defend its own statutes. Of course, here, the State itself realized that Prop 8 didn't have a constitutional leg to stand on, so they decided not to assert their standing, and not to file an appeal.

The private proponents of Prop 8, however, were not injured in any real way, except, perhaps, in their dignity for their ignominious loss at trial. After all, it's no skin off their nose, as the saying goes.

As the Supreme Court put it, "their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law," and a litigant "raising only a generally available grievance about government - claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy."

So, just as Mrs. X had no standing to file an appeal on behalf of her son, the private proponents of Prop 8 had no harm done to them, and no standing, either.

The Prop 8 Proponents Aren't "Special"

The private proponents of Prop 8 tried to argue that they are "special," because the California Constitution and its election laws give them a special role in the initiative process that resulted in Prop 8. It was their job to collect the signatures and file the measure with election officials to put it on the ballot.

The Supreme Court waved this argument aside, saying that their "special" role was only for the process of enacting the law. Once it became a law, they had no role in its enforcement, including enforcement in the courts. The Court saw them as "concerned bystanders," using it simply as "a vehicle for the vindication of value interests."

Later in the opinion, the Court also noted that the Prop 8 proponents are not "agents" of the State of California, nor are they public officials. An "agent" is someone who acts on behalf of a principal party, and that principal has the right to control the acts of the agent. The agent has a fiduciary relationship of trust to the principal.

But the Prop 8 proponents answer to no one. They decide what arguments to make, they cannot be stopped by the State, they owe no duty to the State or the people, they are not elected, and, if the Prop 8 proponents are to be believed, they apparently have no time limit to their office. That's an emperor, not an agent.

Next, the private proponents of Prop 8 argued that, even if they have no standing, the State of California does, and they may assert that interest on the State's behalf. After all, the California Supreme Court was asked if the private proponents had that right, and the California Supreme Court said yes. However, that was under state law. Under federal law, you can't go around bringing lawsuits (or filing appeals) on behalf of other people, even if that person says it's okay.

In the Hollingsworth opinion, the Supreme Court noted the case of Diamond v. Charles, in which Diamond, a pediatrician, wanted to defend the constitutionality of the State's abortion law. He intervened in the lawsuit to help the State with its case. The State lost, and chose not to appeal. Diamond, however, filed a notice of appeal, and the State Attorney General even filed a letter with the court stating that Diamond and the State had the same interests in defending the abortion law. The Supreme Court said that wasn't enough to allow the appeal to proceed, because Diamond hadn't suffered an injury of his own.

The Prop 8 proponents tried to head off the Diamond argument by citing Karcher v. May, in which Karcher, Speaker of the New Jersey State Legislature, was allowed to appeal after the State declined to pursue an appeal. The Prop 8 proponents said this showed that a State could authorize private parties to represent its interests. But the Hollingsworth opinion said that Karcher v. May didn't help the Prop 8 proponents.

The Court of Appeals only allowed Karcher to pursue an appeal because he, as the Speaker, had authority under state law to represent the State's interests in the Court of Appeals. Karcher essentially was the State. But when Karcher lost his position as Speaker, his attempt to appeal the case to the Supreme Court was rejected. It was rejected because he no longer held the office of Speaker, and so lost his authority to pursue the appeal.

The various dissents tried to analogize to other instances when a third party is allowed to stand in for others, such as special prosecutors appointed by courts, so-called "qui tam" actions allowing private parties to assert damages in cases of fraud against the Government, and shareholder "derivative" suits, in which shareholders can sue on behalf of their corporations for wasting of assets. But the Supreme Court waved aside these points, saying that they are really quite different situations.

Chief Justice Roberts ended his opinion with a coup-de-grace: "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."

The Practical Effects

As a result of all this, the notice of appeal to the United States Court of Appeals for the Ninth Circuit was null and void, and that court had no jurisdiction to hear the case. Its opinion was vacated, and the case was sent back to the appeals court with instructions to dismiss the appeal for lack of jurisdiction.

As a practical matter, this means the opinion of Judge Walker, for the United States District Court for the Northern District of California, is reinstated. That opinion was extremely broad, holding that marriage equality is a fundamental right under the United States Constitution, that Prop 8 failed even the slightest test of rationality, and that the purported government interest in prohibiting marriage equality is based on simple fear and dislike of same-sex couples. You can read my summary of Judge Walker's opinion here.

There are 25 days during which the Prop 8 proponents can ask the Supreme Court for a rehearing, which would most likely be denied. That delays the effect of Judge Walker's ruling for that period of time. In addition, there is a question as to whether Judge Walker's opinion affects California marriage bureaus outside of the Northern District of California. (Judge Walker's decision is not binding on judicial districts in other states.)

My understanding of the law is that, generally, decisions of a United States District Court within a state are to be followed unless overturned on appeal, or unless they can be factually distinguished. But I haven't done any research on this doctrine within the California federal courts. Nonetheless, the defeated Prop 8 proponents have pledged to carry their battle on, and they may play whack-a-mole with various city clerks in an attempt to harass same-sex couples for a period of time.

Regardless of all that, it is safe to say that marriage equality has come to California!

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