The California Case of Hollingsworth v. Perry and Family Restoration

            The Supreme Court of the United States (SCOTUS) ruled (somewhat) on California’s Proposition 8 case in Hollingsworth v. Perry, U.S., No. 12-144, on June 26, 2013.  The High Court determined that it did not have jurisdiction to hear the merits of the case because the proponents of the state ballot initiative defining marriage lacked standing to appeal in the Ninth Circuit despite the fact that their elected representatives would not defend the State’s democratically upheld referendum.  Many experts assume we will see many more challenges to iron out the questions left in the wake of this ruling, but it is worth sorting out a bit more here in the context of family restoration. 

            What this case means is that California’s laws on marriage have not worked to overturn the state laws in all 50 states.  Rather, it seems that the Justices stayed out of state law making.  If the Court had, on the other hand, ruled that California’s Proposition 8 was unconstitutional, that result would have overturned every single state law on marriage throughout the nation.

            In another tight 5-4 opinion, Justice Roberts wrote the opinion for the majority, and was joined by Scalia, Ginsburg, Breyer and Sotomayor, JJ., determining that the petitioners lacked standing to appeal the district court's order striking down Proposition 8, California's marriage law. When Proposition 8 was initially struck down in 2010 by the U.S. District Judge Vaughn Walker, then-governor Arnold Schwarzenegger and former attorney general and current governor, Jerry Brown, who were originally defendants in the lawsuit, refused to continue defending the measure on appeal. This left defendant-intervenors Project Marriage and other pro-family groups to defend the law and appeal the ruling. In finding that these citizen groups lack standing to do so the Court’s opinion states:

            Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual "case" or "controversy." As used in the Constitution, those words do not include every sort of dispute, but only those "historically viewed as capable of resolution through the judicial process."... This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives. 

            For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.

            The court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit. Justice Anthony Kennedy filed a dissenting opinion, joined by Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor. Kennedy would have found standing because the California Supreme Court has a right to interpret its own laws regarding who may intervene to support voter-approved ballot initiatives—a question it previously resolved in petitioners' favor. 

            Effectively the Court decided that it could not decide the big issue: whether the U.S. Constitution forbids the voters of California (or any state) from defining marriage the way they did. The Court also decided that the Ninth U.S. Circuit Court of Appeals, which heard the appeal before it got to the Supreme Court, didn’t have the authority to decide the issue either, and erased its 2012 decision, which held Prop 8 unconstitutional. That leaves the case in a posture where the federal district court opinion from 2010 issued by now-retired Judge Vaughan Walker is the only opinion left in the case. He declared Prop 8 unconstitutional, but serious legal questions remain, and more litigation may be on the horizon as a result. While the full impact of this decision remains to be seen, it appears that Walker's order is the only ruling in effect; however under California Law a Proposition may be overturned only by an Appellate Court; hence, Proposition 8 may still be valid California law.  Although the state’s governor has ordered the issuance of marriage licenses to same-sex couples, and an appellate court refused to stay those licenses, a clerk who refuses to issue a marriage license to same-sex couples may not be legally wrong in doing so.  Further legal proceedings will determine what happens to marriage in California, but the Perry decision is limited to California.

            Though the Wall Street Journal called the combination of the two marriage cases “A Gay Marriage Muddle,” in their June 27^th editorial, media reports can tend to gloss over significant substantive matters involved in these cases.  This can lead to inaccuracy in public understanding, and an authentic corruption of fairness and honesty.  With colleague Dr. Mark Yarhouse, our article on these concerns is available for review and download from SSRN.  

            Religious freedom is harmed by these cases.  The Christian Legal Society filed an amicus brief in the Supreme Court explaining why redefining marriage is likely to harm traditional religious believers' ability to live their faith in the public square.  Religious freedom is at stake in this attempt to redefine marriage. Adoption agencies, churches, florists, bakers, photographers and parents are mostly on the losing end when their religious faith conflicts with the elevation of homosexuality in culture. These concerns will only increase after Perry and Windsor.

            Democracy is deeply damaged by the opinion in Perry. That decision effectively denies democracy itself.  It is not simply a liberal or conservative concern, nor a religious issue, nor is it just a marriage issue, and neither is it just a California issue. The High Court’s ruling seems more like a disregard for democracy that affects all Americans. The Court neglected to uphold the public votes of more than seven million California citizens because they could not stand in the place of their elected officials who refused to defend legitimate state laws.  The will of the people has been completely undermined.

            Children were absent in the Perry discussion, but they will bear the brunt of the decision.  The price of redefining marriage is high for children who have already suffered from other social experiments like divorce and cohabitation. Children of same-sex unions are intentionally denied a father or a mother when two adults determine that what they want is more important than what children need.

            The public policy debate will continue.  The case for marriage is about more than a couple’s romantic ties.  That fact is significant for California, and for the nation, because marriage as the foundation for a family remains the best available method for raising children. Family strength and restoration was not assisted by Perry.  All the recent cases ruled on by the Supreme Court of the United States can be accessed at the official SCOTUS site. For more information and analysis on both of these marriage cases see the Marriage Law Digest at marriagedebate.com.

            Our next post will discuss the important family law case regarding adoption and Native American families which the Supreme Court also ruled on at the end of June.