The Supreme Court ended Proposition 8. Here’s what that means.

June 26, 2013

The Supreme Court ruled in Hollingsworth v. Perry, the case arising from Proposition 8, the California constitutional amendment that banned same-sex marriage following a state Supreme Court ruling mandating it, that the amendment's sponsors, who were defending it in court after the California government declined to do so, didn't have standing to appeal. That leaves the ruling of the district court in effect, nullifying the amendment and rendering same-sex marriage legal again in California.

The decision was 5-4, with odd bedfellows on each side. Chief Justice John Roberts wrote the majority opinion, joined by Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Anthony Kennedy filed a dissent, joined by Clarence Thomas, Samuel Alito and Sonia Sotomayor. Here's what you need to know.

Who are Hollingsworth and Perry?


Perry and Stier (middle) with Katami and Zarrillo (right). (Jewel Samad/AFP via Getty Images)

The official title of the case is Dennis Hollingsworth, et al., Petitioners v. Kristin M. Perry, et al. Perry, who is known to education wonks as the leader of the First Five Years Fund, is one of four plaintiffs in the case, along with her partner Sandra Stier and another couple, Paul Katami and Jeffrey Zarrillo. The two couples were denied marriage licenses in California after the passage of Proposition 8, which amended the state constitution to overturn the California Supreme Court’s decision legalizing same-sex marriage.

The case was originally named Perry v. Schwarzenegger, when the latter was governor of California, and renamed Perry v. Brown when Jerry Brown became governor in 2011. However, both Schwarzenegger and Brown (as governor, and previously as attorney general) declined to defend Proposition 8′s constitutionality. As a result, ProtectMarriage.com, the official sponsor of the ballot proposition, stepped in to defend the proposition. The case was subsequently renamed after Dennis Hollingsworth, a former Republican state Senate minority leader and a leader of ProtectMarriage.com.

What’s happened at the initial trial? 


Ted Olson, a noted legal conservative who thinks Proposition 8 is unconstitutional. (Jeffrey MacMillan/Capital Business)

The plaintiffs, represented by former solicitor general Ted Olson and Microsoft prosecutor David Boies (who, coincidentally, took opposing sides in Bush v. Gore), first argued their case in front of the U.S. District Court for the Northern District of California. Vaughn Walker, the chief judge of the court, presided.

The plaintiffs called a bevy of witnesses, including historians Nancy Cott and George Chauncey, who are experts on marriage and the gay and lesbian community, respectively. Cott emphasized that marriage has never had a uniform definition, and Chauncey detailed the forms of discrimination gays and lesbians have faced in the United States historically. Stanford political scientist Gary Segura testified that no minority group has been targeted by more ballot initiatives than the LGBT community.

Psychologists Gregory Herek and Ilan Meyer explained how legal discrimination affects the mental well-being of gay and lesbian people, while Anne Peplau explained the benefits of marriage to psychological health and the paucity of evidence suggesting that same-sex unions harm opposite-sex relationships. Cambridge’s Michael Lamb noted that there’s no good evidence that same-sex parents are any worse for children than opposite-sex parents. Then-San Diego Mayor Jerry Sanders, a Republican, explained how he came to support same-sex marriage due to his lesbian daughter, and writer Helen Zia explained her personal experiences with anti-lesbian prejudice. Finally, Edmund Egan, chief economist for the city of San Francisco, testified that the city would benefit economically due to lower mental health costs for LGBT residents, among other factors.

The defendants offered only two witnesses. One, David Blankenhorn, was a left-leaning anti-same-sex marriage activist, who did his own side some damage by conceding under cross-examination that the American people would be “more American on the day we permitted same-sex marriage than we were on the day before.” Walker would state in his opinion that Blankenhorn did not qualify as an expert witness and that his testimony was “unreliable and entitled to essentially no weight.” After the case was decided, Blankenhorn changed his mind and now supports same-sex marriage. The other witness, Kenneth Miller, is a political scientist at Claremont McKenna College. Miller testified that the LGBT community has grown in political power in recent years.

On Aug. 4, 2010, Walker ruled for the plaintiffs, concluding that Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.”

What’s happened in the appeals court?


Judge Stephen Reinhardt (American Constitution Society)

First, the case was appealed by ProtectMarriage.com to the U.S. Court of Appeals for the 9th Circuit, a famously liberal appeals court. Worse still for Proposition 8′s defenders, the three-judge panel chosen to hear the case included Stephen Reinhardt, one of the most liberal judges on the 9th Circuit. Charles Cooper, the lawyer for ProtectMarriage.com, asked Reinhardt to recuse himself, citing the fact that Reinhardt’s wife is executive director of the Southern California ACLU, which has been involved in legal challenges to Proposition 8. He declined. The court also declined to vacate the District Court decision on the grounds that Walker is himself gay, and so had a personal interest in the case.

Reinhardt authored a 2-1 ruling upholding Walker’s decision. Reinhardt concluded that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” However, he declined to argue that all bans on same-sex marriage were unconstitutional, instead judging that Proposition 8′s revocation of a previously guaranteed right to marriage was particularly egregious.

ProtectMarriage.com appealed to the whole 9th Circuit Court, asking it to hear the case as en banc (that is, with all judges, rather than as a panel of three). That request was denied. That left the U.S. Supreme Court as the final point of appeal. In December, the court granted certiorari, agreeing to hear the case.

What does the court's ruling mean?


Opponents of same-sex marriage protest outside the court. (Pablo Martinez Monsivais/AP)

The court's ruling says that Hollingsworth didn't have standing to appeal the district court's initial decision. The proposition's defenders, it ruled, don't have a personal enough interest in the case to appeal. They just want to to defend the law. "As this court has repeatedly held," the opinion says, "Such a 'generalized grievance' — no matter how sincere — is insufficient to confer standing." Because of that, the Supreme Court's ruling only invalidates Proposition 8 and doesn't apply more broadly in either the 9th Circuit or the entire country.

What could the court have said?

Any number of things!

The substantive issues in the case revolved around whether Proposition 8, or bans on same-sex marriage generally, violate the 14th Amendment’s guarantee of equal protection under the law. Usually, the courts apply one of three tests when determining whether an unconstitutional rights violation has occurred: rational-basis review, intermediate scrutiny or strict scrutiny.

Strict scrutiny, usually reserved for cases involving race, requires the state to prove that the government has a compelling interest in the subject, that the law in question is narrowly tailored to suit that interest, and that the law in question is the least restrictive possible way to serve that interest. Intermediate scrutiny, which tends to be used in cases involving sex or gender-based discrimination, merely requires the government to show that the law in question serves a government interest through means that are substantively related to that interest. Rational-basis review, which has historically been the standard applied to discrimination on the basis of sexual orientation, simply requires the government to demonstrate that it has a legitimate interest in a subject and that the means chosen to further that interest is rationally related to that interest.

So if the court had made a substantive ruling, it would have had to choose a level of scrutiny to use. Walker ruled that Proposition 8 failed even rational basis review, as did Reinhardt. In Romer v. Evans, the most important equal protection precedent for gay-rights cases, the Supreme Court, led by Anthony Kennedy, applied rational basis review. The DOMA decision did not use rational basis review; while its level of review is unstated, Scalia and Alito's dissents both claim it's using a higher level of scrutiny.

But the court dodged those substantive questions. It also declined to issue a narrow ruling along the lines Reinhardt laid out, wherein revoking the decision was unconstitutional, but merely banning same-sex marriage is not.

How did the court come to this decision?

Through these oral arguments:

http://www.washingtonpost.com/blogs/wonkblog/files/2013/03/oralargs.pdf

Read the best of them here.

Update: Parts of this post originally appeared here.

Update II: This post originally said the decision leaves the Ninth Circuit's decision in place. It leaves the district court's decision in place. We regret the mix-up.

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Dylan Matthews · June 26, 2013