A Most Unfortunate Session of the U.S. Supreme Court II

3.  The decision in Hollingsworth v. Perry (No. 12-144, October Term 2012) will not extend a judicially invented right to marry under the Fourteenth Amendment to states that have prohibited gay marriage; it will, however, hinder the direct enactment of laws through referendum processes by enabling state governments to ignore the results of a popular legislation, free from the threat of a federal legal challenge by interested groups. 

In my previous rant on marriage as a constitutional and public policy issue, I predicted the decision that was issued in Hollingsworth (i.e. a five-to-four decision, based on the procedural rejection of legal standing by the third-party organizations that had worked to place the Proposition 8 prohibition of gay marriage on the California ballot) and I posited that this decision would have pernicious consequences, relative to the invention of a right to marry under the Fourteenth Amendment in the 9^th Circuit’s opinion in Perry v. Brown (671 F.3d 1052 (9^th Cir. 2012)).   

To be fair, I had not read the Perry decision before I wrote my previous comments, and, in failing to do so, I did not adequately represent what the two judge majority in the case had argued concerning the enactment of Proposition 8 in relation to the demands of the Fourteenth Amendment.  I continue to maintain that the U.S. Supreme Court’s decision in Loving v. Virginia (388 U.S. 1 (1967)) provides enough legal ammunition to invalidate every ban on same-sex marriage in the U.S. as a violation of the due process clause of the Fourteenth Amendment, establishing marriage as a fundamental right under the U.S. Constitution.  However, the 9^th Circuit Court majority did not rely on this supposed right established by the precedent in Loving.  Rather, it limited itself to a much more truncated question.  Given that the California state Supreme Court had interpreted the California state constitution in such terms as to prohibit discrimination against same-sex couples seeking to enter into a marriage contract (see In re marriage cases (43 Cal. 4^th 757 (2008)[76 Cal.Rptr. 3d 683, 183 P3d. 384])), a right to marriage had already been extended to same-sex couples without reference to the U.S. Constitution.  In Perry, the specific question that the plaintiffs and respondents to the case sought to clarify was whether the subsequent restriction of the right to marry, conferred under the California constitution, violated the equal protection clause of the Fourteenth Amendment.  Succinctly, in the terms of the argument, was the amendment to the California constitution, passed by California voters utilizing the referendum process, rationally related to the exercise of a legitimate public purpose? 

The 9^th Circuit Court’s majority held that Proposition 8 failed to satisfy this very lenient standard of rationality because the only manifest purpose that it could ascertain for the amendment was to purposefully discriminate against same-sex couples in designating that no same-sex union, sanctified by public officials, could be labeled a “marriage.”  The Court rejected the notion that purposeful discrimination against a particular class of individuals could be regarded as a legitimate exercise of state power where no other legitimate purpose could be ascertained for the amendment’s passage.  It, therefore, invalidated Proposition 8 as a violation of the equal protection clause under the Fourteenth Amendment. 

Having corrected my misrepresentation of the Perry decision, the terms of Perry appear much less applicable to states that have enacted bans on same-sex marriage within the last few years as declaratory statements, clarifying the protections and restrictions of marriage rights contained within their own state constitutions rather than supplementing them to intentionally deprive marriage rights to same-sex couples.  That is to say, under the precedent in Perry, if state legislatures in, say, Alabama or Utah enacted constitutional limitations on marriage rights to opposite-sex couples without any finding by state courts that their state constitutions required recognition of same-sex marriage rights, then these states would not run afoul of the equal protection clause in the Fourteenth Amendment.  However, if voters in Massachusetts had attempted to pass a constitutional same-sex marriage ban after the decision in Goodridge v. Massachusetts Department of Health (798 N.E. 2d 941 (Mass. 2003)), finding that the Massachusetts constitution requires equal marriage rights for same- and opposite-sex couples, then Massachusetts would have fallen afoul of the Fourteenth Amendment.  Moreover, the Loving decision, and its conclusion that marriage constituted a fundamental right under the due process clause of the Fourteenth Amendment, never figures into the decision in Perry, even though it clearly forms part of the argument of the district court ruling from which Perry was the appeal. 

With all of this in mind, if the Supreme Court in Hollingsworth had merely affirmed the decision of the 9^th Circuit in Perry, then I would continue to view both decisions as instances of detrimental federal judicial interference in the internal social policies of individual states, but I would have at least been able to take solace in the limitations of the Perry decision.  On the contrary, this is not what the Roberts Court did.  Fundamentally, the Hollingsworth decision was not about gay marriage – it was about the capacity for private citizens, defending particular acts of state legislation in lieu of government officials (e.g. a state’s attorney general), to enjoy legal standing to sue or otherwise demand a hearing in federal court in controversies concerning the U.S. Constitution.  Specifically, it stripped citizens, who had worked to place Proposition 8 on the California ballot in the first place, of the right to defend the constitutional amendment against a challenge to its constitutionality in federal court because they were not official representatives of the state of California, empowered with legal standing in federal Article III courts.  It was, as predicted, a blatant assault on democracy, as represented both in the California referendum process and in the state’s allowance of private citizens to hold legal standing in cases where the government disavows legal requirements imposed by enacted referenda. 

Notably, in this respect, the Roberts Court directly rejected the 9^th Circuit’s conferral of federal legal standing on Proposition 8’s defenders.  In the 9^th Circuit’s majority decision in Perry, the court presents the results of a request for certification of the legal standing of the Proposition 8 proponents to California’s Supreme Court.  In reply, the California Supreme Court certified the standing of the proponents in reference to Article II, Section 8 of the California Constitution, stating that, for California’s purposes, “the official proponents of an initiative measure” possess legal standing to defend the constitutionality of their initiative on the state’s behalf “when the public officials charged with that duty have refused to do so.”  Noting that the decision of whom possesses legal standing before Article III federal courts remains with the courts themselves, the 9^th Circuit Court remains satisfied in deferring to the California Supreme Court’s judgment on whether a third party should be allowed to stand in for state officials. 

Likewise, questions of standing are certainly within the hands of the U.S. Supreme Court, subject to such restrictions placed on the Court by Congress through federal statutes.  With this in mind, I will not say that, Constitutionally speaking, there was anything wrong per se with the Court’s Hollingsworth decision.  Rather, it is simply a bad precedent because it reflects an anti-democratic bias in the ruling of a majority of nine unelected jurists, and especially the Chief Justice, the majority opinion's author.  If it was worthwhile for the Court to have granted Certiorari in the first place, regarding a Constitutional question on equal protection, then they should have addressed the Constitutional question at hand, determining whether the very limited principle embodied in Perry was sufficient to strike down Proposition 8, whether the district court’s decision based on the due process clause in connection with Loving was required in invalidating the amendment, or whether voters in California were entitled to believe that the preservation of marriage, as an institution unifying only opposite-sex couples, needed to be restricted to opposite-sex couples.  As a defender of the principle of democratic rule, I would have preferred the last of these options, notwithstanding its effects on the institution of marriage equality, which I, likewise, support.  The latter is an institution better enacted through the democratic process than through the courts. 

           Instead, the Roberts Court cut the legs out from under the case’s plaintiffs and, henceforth, established a precedent under which state governments, commanded by their sovereign democratic polities to enact certain policies with which they disagree, might be free in their intransigence against the will of the people!  Again, it serves to raise the question of who is actually sovereign in a state like California – the state government, the state constitution through which it was organized, or the people who elected it and who, by means of referendum process, nominally reserve the power to issue it commands to act in its interests?  Hollingsworth will, undoubtedly, contribute to undermining the vitality of the referendum process in California and other states and, as such, further intensify political alienation and apathy across the U.S.