Prop. 8 Backers Lack Standing, Justices Rule

     (CN) – In a Wednesday ruling that paves the way for same-sex marriages to resume in California, the U.S. Supreme Court found proponents of the state’s Proposition 8 gay marriage ban lacked standing to defend its constitutionality.
     The high court avoided ruling on the issue of gay marriage itself, but its decision leaves in place an August 2010 ruling by U.S. District Court Judge Vaughn Walker that the ban violated the constitutional rights of same-sex couples.
     That decision had been a victory for Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarillo – the gay couples who filed suit – but gay marriage has remained illegal in California pending resolution by the Supreme Court.
     California voters passed the ban in 2008, mirroring the now-unconstitutional section of DOMA, by amending the California Constitution to define marriage as between a man and a woman. The initiative reversed a California Supreme Court decision that gave same-sex couples the right to marry.
     With both the California and U.S. governments declining to defend Prop. 8 on appeal, its sponsors from claimed that they had that right.
     The 9th Circuit had sought guidance on this issue from the California Supreme Court and, satisfied that the group had standing, affirmed striking down Prop. 8.
     In a 5-4 decision Wednesday, the Supreme Court found otherwise.
     “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,” Chief Justice John Roberts wrote, joined by Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
     “Article III standing ‘is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests,’ ” Roberts wrote, quoting Diamond v. Charles, which held that a private pediatrician could not defend the constitutionality of Illinois’ abortion law.
     Challenging the California Supreme Court’s finding that Protect Marriage could assert the state’s interest, the U.S. Supreme Court cited Karcher v. May, in which New Jersey state lawmakers were allowed to intervene in a lawsuit against the state. Roberts distinguished the case by saying Prop. 8’s supporters were private parties.
     “Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it,” Roberts wrote. “The legislators in that case intervened in their official capacities as speaker and president of the Legislature. Petitioners here hold no office and have always participated in this litigation solely as private parties.”
     Roberts’ opinion also shot down the proponents’ argument that they were acting as agents for the people of California, finding that both the 9th Circuit and the California Supreme Court’s earlier decisions merely allowed them to argue the case before the higher court.
     “Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the state, and they plainly do not qualify as such,” Roberts wrote.
     “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,” he added. “We decline to do so for the first time here. Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal.”
     Justice Anthony Kennedy’s dissent argued that the state’s definition of the proponents’ authority was binding and was enough to establish standing. He said the majority opinion undermines the state’s initiative process and the ability of “a state’s authorized representatives to defend the outcome of a democratic election.”
     “In the end, what the court fails to grasp or accept is the basic premise of the initiative process,” Kennedy wrote. “And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century,” Kennedy wrote. “In California and the 26 other states that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a state Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the state’s usual legal advocates decline to do so. The court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.”
     Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor joined with Kennedy.
     Standing had also been an issue in the court’s other gay rights case Thursday: Edith Windsor’s challenge to the Defense of Marriage Act.
     The 5-4 court affirmed there that a DOMA provision was unconstitutional, even though defense of the law had fallen to private attorneys when the federal government refused to step in.

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