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Hollingsworth v. Perry

The plaintiffs in Hollingsworth v. Perry challenged the constitutionality of California’s Proposition 8, a ballot measure that amended the California Constitution to prohibit same-sex couples in the state from marrying.  When the state declined to defend Prop 8, its proponents stepped in to do so.  In an historic ruling in August 2010, U.S. District Judge Vaughn Walker held that Prop 8 violated the equal protection and due process rights of gay men and lesbians under the Fourteenth Amendment of the U.S. Constitution.  The Prop 8 proponents appealed to the Ninth Circuit.

Constitutional Accountability Center filed a brief in the Ninth Circuit in support of Judge Walker’s ruling.  A three-judge panel of the Court of Appeals heard oral argument in Perry on December 6, 2010.  CAC “live blogged” the oral argument for Huffington Post, here, and published a post-argument analysis on Huffington Post, here. As we noted then, the argument went well for supporters of marriage equality, although the court was also concerned about a jurisdictional issue – whether the Prop 8 proponents had the legal right (“standing”) to pursue an appeal.

The Ninth Circuit, concluding that resolution of the standing question turned on an open question of state law, formally certified that question to the California Supreme Court. On November 17, 2011, the California Supreme Court decided that the Prop 8 proponents had the right to pursue an appeal. In a 2-1 ruling issued on February 7, 2012, the Ninth Circuit upheld Judge Walker’s decision striking down Prop 8. The proponents’ motion asking the court to rehear the case en banc was denied by the Ninth Circuit. The proponents then sought, and were granted, review by the U.S. Supreme Court.

On February 28, 2013, Constitutional Accountability Center and the Cato Institute jointly filed an amici curiae brief in the Supreme Court in Perry, demonstrating that the text and history of the Fourteenth Amendment guarantee equality under the law and equality of rights for all persons. In addition, as illustrated in our brief, the Framers of the Amendment’s Equal Protection Clause recognized the right to marry the person of one’s choosing as a protected civil right inherent in liberty and freedom. As we argued, by denying same-sex couples the right to marry, Prop 8 violated the original meaning and clear text of the Fourteenth Amendment.

On June 26, 2013, in a 5-4 ruling, the Supreme Court held that, as private parties with a “generalized grievance,” the Prop 8 proponents did not have standing to appeal Judge Walker’s ruling. In the majority opinion authored by Chief Justice John Roberts, the Supreme Court explained that Article III of the Constitution confines the power of the federal courts to deciding actual “cases” or “controversies.” Once the District Court issued its order, the Prop 8 proponents “no longer had any injury to redress,” and that “no matter how deeply committed petitioners may be to upholding Proposition 8,” their interest was insufficient to confer standing.  The four dissenting Justices (Kennedy, Thomas, Alito, and Sotomayor) would have held that the Prop 8 proponents did have standing to appeal.

Given its ruling, the Supreme Court vacated the Ninth Circuit’s decision, leaving Judge Walker’s opinion – that Prop 8 violated the Fourteenth Amendment – as the final and controlling decision on the merits. On June 28, 2013, the Ninth Circuit lifted a stay pending appeal that it had imposed on Judge Walker’s ruling, allowing same-sex marriages to resume in California.  

Read CAC’s reaction to the Perry decision here, here, here and here.