Prop 8 Ruling Vindicates Olson's and Boies' Risky StrategyElizabeth Cooper in The National Law Journal, June 26, 2013
A calculated, and once criticized, legal strategy to move the issue of gay marriage quickly to the U.S. Supreme Court culminated in victory on Wednesday as the justices effectively cleared the way for same-sex marriages in California.
A divided court, led by Chief Justice John Roberts Jr., held that the proponents of Proposition 8, California’s ban on same-sex marriage, lacked standing to appeal a federal district judge’s ruling that Proposition 8 violated the Constitution. The Proposition 8 ballot initiative committee had intervened to defend it when state officials declined.
“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,” Roberts wrote. “We decline to do so for the first time here.”
The 5-4 majority in Hollingsworth v. Perry, one of two same-sex marriage cases decided Wednesday, vacated a ruling by the U.S. Court of Appeals for the Ninth Circuit and ordered that court to dismiss the appeal by the Prop. 8 proponents. The net effect of the standing decision was to leave in place the district court’s statewide injunction against enforcement of Prop. 8.
Of the two same-sex marriage cases before the justices, the Prop. 8 case held the greatest potential for a national ruling on the right of gay couples to marry. It asked the justices whether the 14th Amendment’s equal protection clause prohibited a state from defining marriage as the union of a man and a woman. The justices did not reach the merits.
The lawsuit challenging Prop. 8 was filed by Theodore Olson of Gibson, Dunn & Crutcher and co-counsel David Boies of Boies, Schiller & Flexner on behalf of two same-sex couples who wanted to marry. The two lawyers made clear their intent to bring the constitutional issue to the Supreme Court. A number of gay rights organizations initially feared that the litigation was premature and could result in a ruling that set back the movement for years. They were pursuing a state-by-state effort to win marriage laws.
Although the Supreme Court’s ruling did not give Olson and Boies a national victory, they saw the seeds of future victory in the justices’ decision in U.S. v. Windsor striking down Section 3 of the federal Defense of Marriage Act (DOMA) as applied to legally married gay couples.
Justice Anthony Kennedy’s majority opinion in the DOMA case, Boies said, rested on due process and equal-protection principles. “Those principles apply equally to the federal and state governments,” he said. The Kennedy opinion also acknowledged that the stigma and effect of DOMA harms the children of gay couples, he added.
Elizabeth Cooper of Fordham University School of Law agreed, saying, “Although the court declined to address the question of whether same-sex couples have a constitutional right to marry in Perry, that question will one day come squarely before the court and it will answer in the affirmative. Indeed, the logic of Windsor compels such a result.”
In his Prop. 8 opinion, Roberts said it was not enough that a party invoking the power of a federal 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. Here, however, petitioners had no ‘direct stake’ in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law. We have repeatedly held that such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.”
Once California voters approved Prop. 8, the chief justice wrote, it became a duly enacted constitutional amendment. Prop. 8’s proponents had no role—special or otherwise—in the enforcement of Proposition 8. “They therefore have no ‘personal stake’ in defending its enforcement that is distinguishable from the general interest of every citizen of California.”
Roberts was joined by justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Justice Anthony Kennedy wrote a dissenting opinion, which justices Clarence Thomas, Samuel Alito Jr. and Sonia Sotomayor joined.
Kennedy wrote that the California Supreme Court, acting on a question certified to it by the Ninth Circuit, had said that an initiative proponent has the authority to appear in court and assert the state’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The state court’s definition of the proponents’ power, he said, is binding on the U.S. Supreme Court.
“And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution,” Kennedy wrote. “The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied.”
He warned that the court’s decision has implications for the 26 other states that use an initiative or popular-referendum system.
In his majority opinion, Roberts cited an amicus brief on standing filed on behalf of former acting Solicitor General Walter Dellinger of O’Melveny & Myers.
“In one respect, it was slightly beyond what I hoped we would get,” Dellinger said. “I thought it would have to be decided later what was the effect of an unappealed district court decision. But Roberts goes out of his way to describe the district court injunction as a valid order. I had feared they would say it was not entirely clear what was the effect here and that Judge [Vaughn] Walker’s order might be broader than justified. But Walker’s order becomes final. California is done. That was the icing on the cake.”
However, lawyers for the Prop. 8 proponents were not willing to agree that the ban had been nullified.
“We’re in an unusual situation,” said Andrew Pugno, general counsel to ProtectMarriage.com. “There is a conflict between California law and the federal injunction.”
He said California law requires the state to enforce a law until there is an appellate decision declaring the law unconstitutional. “There is no appellate decision against Prop. 8,” he said, explaining that the Supreme Court ruling had vacated the Ninth Circuit decision striking down Prop. 8.
“Because of this unusual situation, our legal team is studying this closely and assessing what options we have,” said Pugno, who was co-counsel with Charles Cooper of Cooper & Kirk. Cooper argued the Prop. 8 case in the Supreme Court. “We won’t know for some time what those options might be.”
Shortly after the Supreme Court’s ruling, California Governor Jerry Brown ordered the state Department of Public Health to instruct county clerks to begin issuing marriage licenses to same-sex couples as soon as the Ninth Circuit lifted its stay against the district court’s injunction.
Before the passage of Prop. 8 in 2008, the California Supreme Court had held that same-sex marriage was constitutional and about 18,000 same-sex couples legally wed. Prop. 8 was approved shortly after the state court ruling.