ABA Journal


U.S. Supreme Court

SCOTUS standing ruling has effect of allowing gay marriage in California

Jun 26, 2013, 02:35 pm CDT


Whatever your feelings about the legitimacy of gay marriage, a terrible thing has happened to the we the people. Our government has decided that our government is more important than the voice of the people. The people have no standing and no voice when they protest against what our government chooses what it wants to do to the people.

We the people told our government in no uncertain terms that we did not want gay marriage. It didn't matter to our government. A gay judge who refused to acknowledge conflict showed disdain and contempt for we the people and shut we the people down and out. Our Supremes agree, and now it is the law of the land for our government to shut we the people down and out whenever we speak out against our government's decisions that our government doesn't like.

We the people now have to live with the dictates of our government, no matter what we say for ourselves. To get a government that actually listens to we the people, we have to live in a state that doesn't intimidate, bribe, steal or corrupt the votes necessary to put decent, honest Americans in power. If we want a government that listens to we the people, it will never happen in California.

By sunforester on 2013 06 26, 3:14 pm CDT lack basic understanding of the law.

America is not "majority rules", or whatever "we the people" say.

Everyone has constitutional rights, even if the majority votes otherwise.

Soryy, but, not sorry you lost. Oftentimes, the majority is just flat out wrong.

By defensive lawyer on 2013 06 26, 3:31 pm CDT

"whatever your feelings about gay marriage" year right, #1. it's pretty clear what your feelings are, and I have NO idea how you're reaching your conclusions. gay marriage is a decision left to the states. if you're disappointed with how the California courts treated Prop 8 - take it up with them. But the SC did not usurp the powers of the people in ANY way here.

By annoyed at #1 on 2013 06 26, 3:33 pm CDT

"A gay judge who refused to acknowledge conflict showed disdain and contempt for we the people and shut we the people down and out."

Riddle me this, if a judge has a conflict in same sex marriage cases because he is gay, wouldn't straight judges be disqualified too?

By NoleLaw on 2013 06 26, 3:33 pm CDT

@4: Obviously not. I mean, a straight judge has an natural, innate appreciation of the legal importance of "traditional" heterosexual marriage that a gay judge just could never have!


By EsqinAustin on 2013 06 26, 3:43 pm CDT

The case was correctly decided and, indeed, is the only reasonable interpretation of the holdings in view of precedent.

By faddking on 2013 06 26, 3:44 pm CDT

Of course, the really interesting Full Faith and Credit cases will start popping up in a short while as gay couples wed in California seek to have their marriages recognized in states that either don't explicitly recognize gay marriage or explicitly don't allow gay marriage.

By faddking on 2013 06 26, 3:47 pm CDT

The issue here is the right of the people to enact a law by referendum. AND. The oath of the public officials to "preserve, protect and defend" those laws.
When the public officials of the State of California refused to defend a law enacted by the People of the State of California they have violated the trust given to them by those same People, and should each and every Public official either resign or be forced from office through the recall process.
For the US Supreme Court to say that only the public officials of a State represent a State for the purposes of prosecuting or defending a law enacted by the people of that State, is just wrong, philosophically, morally and constitutionally.
The precedent has been set. Any law in any state, passed by referendum, can be vetoed by having the Attorney General just walk away from that law.
This is a VERY DANGEROUS CONCEPT in the constitutional concept of "checks and balances".

By davebert on 2013 06 26, 3:56 pm CDT

I would think that an executive would have, in fact, a *duty* not to defend a law that s/he genuinely believed egregiously violated the Constitution, no matter how much of a majority agreed with the law.

Maybe in another case in the future, they WILL hold that private parties can step in for the state. I think it would have been difficult to get there with this one, because you don't really have very supportable people standing up and trying to defend it. You had people whose experts got demolished on the stand because there was no science involved at all.

I think in a future case, with a better private entity positioned correctly that actually made cogent arguments, the court might give them standing.

By Anonymous on 2013 06 26, 4:11 pm CDT

If the Prop. 8 proponents had a legally justiciable claim to Article III "injury in fact" standing they would have aserted it. They didn't, of course, because their own lives and selves are completely unaffected by whether or not gay marriage is lawful.

By andythelawyer on 2013 06 26, 4:37 pm CDT

Seriously? We are treading on religious principles that have been established long before this country and its founding fathers. When ever your dealing with an issue protected by the first amendment, which this certainly is, a greater weight is applied. The materiality of the subject matter weighs in favor of considering the First Amendment violations by and through the government's intrusion into the rights of U.S. citizens. The First Amendment safeguards the foundation of religious principles requiring an application of exactitude before allowing the trespass of those principles. The Fourteenth Amendment 's Equal Protection Clause does not apply here because of the basic principle that marriage has always been a cord of three. The Father, a man and his wife. It is holy institution established well before homosexuals sought rights to protect their choice of sexual provocation. Because marriage is an establishment founded under religious belief the state has no business or authority (jurisdiction) to govern how marriage will be determined. It is up to the church and no proper authority was provided with scrupulous exactitude was identified to overcome the protections established by the First Amendment.

By kleintwolaw on 2013 06 26, 4:42 pm CDT

@11 - You're missing some important legal pieces here.

The government is not forcing any religious group to perform gay marriages.

Religious groups do not provide the legal benefits flowing from marriage as a legal institution. The government does.

This is not about religion. This is about the power of the government.

By Anonymous on 2013 06 26, 4:45 pm CDT

I'm missing pieces "here" because I don't have the time or space to write a brief on this subject. I believe the argument is solid. The avenue in which ever way someone wants to argue which standing they have to make something right is of no concern. The fact is the ultimate outcome is the same and effect equally damaging to the principles that divide church and state. If it is simply code re-codification then it is a matter of the congress and state legislature passing the appropriate laws for domestic partnership. Marriage is and always will be in every aspect of every religious belief since the founding of time between a man and a woman. Anything else trespasses on constitution law.

By kleintwolaw on 2013 06 26, 4:57 pm CDT

@13 - That's factually and legally incorrect. Sorry.

If you were right, then the same thing would be true if DOMA were upheld -- the government would be intruding on the right of non-fundamentalist religions to recognize and cherish unions of all types.

Your argument can only be right if the government stops recognizing marriage as a legal institution in any way -- meaning no benefits attach, etc, etc.

By Anonymous on 2013 06 26, 5:00 pm CDT

@11 - you may want to go back and read the trial court's opinion. It was a while ago so I'm going from memory, but I believe the gist of it was that the amendment to the state constitution, voted on as "Prop 8", took away rights that had been previously granted by the Cal Supreme Court. Taking away someone's civil rights demands a higher level of scrutiny. The trial court ruled that not even did the defendant (the State) not prove that it met that higher scrutiny, it couldn't even meet rational review. That means the state had no rational basis for taking away someone's rights in this instance.

My question is - since the Appellate Court holding was vacated and this goes all the way back to the trial court's ruling, does it only apply to the Northern District, or is that ruling valid state-wide?

By Netochka Nezvanova on 2013 06 26, 5:01 pm CDT

#11: If I understand you correctly, then it would appear two atheists, male and female, cannot legally marry?

By plink on 2013 06 26, 5:08 pm CDT

I'm sorry, it's just that this seems this is a circular argument. Again, did the Cal S.Ct have the authority to make a determination that trespasses on a U.S. Const. protected First Amend. right? You stated the civil authority, but it comes down to the basis of the trespass and was it constitutional in the first place without reviewing on the record using scrupulous exactitude the reasons for the trespass. I have not gone back that far and I am not sure that it was. If it wasn't than all of this is for not. Further the people do have a say as they are an indispensable party to the subject matter.

By kleintwolaw on 2013 06 26, 5:19 pm CDT

Going back before Prop 8, the Cal Supreme Court ruled that "separate but equal" wasn't equal, and the two classes could not be separated by the mandated use of different terms to refer to "marriage" vs. "registered domestic partnership". Registered Domestic Partners had many (supposedly "all") of the same rights as married people, but were not permitted to use the word "marriage". The Cal SC determined that was relegating them to a lower class, causing them to be unequal, and ruled that the separation should be ended. For several months, marriages were legal between any combination of genders. Everyone enjoyed the right to marry the person of their choosing. Then enter Prop 8, declaring same-gender marriages to be unconstitutional... and you know the rest of the story.

By Netochka Nezvanova on 2013 06 26, 5:29 pm CDT

the supreme court isn't exactly ont he cutting edge of social opinion. but this is a sign that gay is pretty normal for society. 30 years from now, it will be totally not-strange-at-all normal and this decision will seem like a bizarre historical artifact. Future generations will be scratching their heads wondering how people got all in a tizzy about this. And if theya re reading the archived comment @17, they will be puzzling as to what he is even trying to say.

Gay. Normal. Married like straights. So ordered....

By defensive lawyer on 2013 06 26, 6:02 pm CDT

@19: "And if theya re reading the archived comment @17, they will be puzzling as to what he is even trying to say."

Sort of like many of us in the present!

By EsqinAustin on 2013 06 26, 6:23 pm CDT

@20 - Yeah, I tried my best, but s/he isn't making much sense and doesn't really seem to be thinking like a lawyer here. This is about legal benefits given by the government -- not about what any religious group can/must/may do.

By Anonymous on 2013 06 26, 6:25 pm CDT

Faddking, I think you're the first person I've seen other than myself, to raise the question of the full faith and credit clause, which I think applies to DOMA but which the Court did not consider in Windsor and which I don't think applies to Windsor. Windsor has been decided on the purely procedural matter of standing and not on the merits. To be honest I'm not sure I agree with the District Court as a legal matter. States can choose to permit same sex marriages or not. The due process clause and now the Windsor decision requires that the Federal Government recognize such marriages when they are recognized by the State.

By George Sly on 2013 06 26, 7:23 pm CDT

@22: "which I think applies to DOMA but which the Court did not consider in Windsor and which I don’t think applies to Windsor. "

I think you mean "Perry" was decided procedural. "Windsor" was decided based on Equal Protection / Fifth Amendment.

By EsqinAustin on 2013 06 26, 7:27 pm CDT

And the FCC wouldn't have applied to Windsor because they were married in Canada, right?

By Anonymous on 2013 06 26, 7:29 pm CDT

@24: It would, because NY recognized the wedding, so it would be FF&C applying NY law.

By EsqinAustin on 2013 06 26, 7:30 pm CDT

Mr/Ms. EsqinAustin: You are correct I should have referred to Hollingsworth or as you put it Perry. It's what I get for leaving both cases open on my screen and toggling back and forth. The comment should have read:
Faddking, I think you’re the first person I’ve seen other than myself, to raise the question of the full faith and credit clause, which I think applies to DOMA but which the Court did not consider in Hollingsworth and which I don’t think applies to Hollingsworth. Hollingsworth has been decided on the purely procedural matter of standing and not on the merits. To be honest I’m not sure I agree with the District Court as a legal matter. States can choose to permit same sex marriages or not. The due process clause and now the Windsor decision requires that the Federal Government recognize such marriages when they are recognized by the State

I stand corrected.

By George Sly on 2013 06 26, 8:07 pm CDT

Though I think the court was correct in finding what they did, it was a total dodge to find what they found.

By OKBankLaw on 2013 06 26, 8:29 pm CDT

@26: Makes sense - thanks!

By EsqinAustin on 2013 06 26, 8:58 pm CDT

@25 - Ah, that's right. Although I wonder if a state's recognition of another country's marriage falls into "public acts, records, and judicial proceedings" that FFC attaches to.

By Anonymous on 2013 06 26, 9:10 pm CDT

A state that does not allow SSM is not obliged to recognize same sex unions allowed by other states.

By Marc on 2013 06 26, 9:13 pm CDT

@29: True - I may have jumped the gun with assuming that because NY law recognizes foreign marriages, FFC attaches.

By EsqinAustin on 2013 06 26, 9:20 pm CDT

@31 - I'm sure there's law about the types of things it does and does not attach to, I'm not an expert. All I can do is look at the words. I could see it being shoehorned into "records" somehow, perhaps?

On the other hand, I can't imagine that the intent of the FFC is that NY has to do some affirmative public act. That would be ridiculous and would make the Constitutional principle turn on something as petty as having a piece of paper stamped that says "recognized in NY." (Hell, for all I know, that IS the procedure. I'm just assuming it isn't.)

By Anonymous on 2013 06 26, 9:27 pm CDT

Of course, all th8is means is that Mr. Perry and his male partner may marry. This was not a class action lawsuit and accordingly has no legal affect on anyone else.

By Marc on 2013 06 26, 9:29 pm CDT

The Supreme Court has long recognized a public policy exception to the full faith and credit clause, by drawing a clear distinction between state judgments and state laws. As recently as 2003, the Court wrote (in Franchise Tax Board v. Hyatt) that, "[o]ur precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments."

So if court action in one state conflicts with the public policy in another, federal courts have been rightly reluctant to force a state to enforce any pronouncements of another state which contradict its own public policy.

The Court made this “public policy exception” plain in 1939, in Pacific Employers Insurance v. Industrial Accident.:

“[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy...And in the case of statutes...the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.”

By Marc on 2013 06 26, 9:32 pm CDT

(Disclaimer: The above post was plagiarized from and is not the result of genuine unbiased legal analysis.)

By Anonymous on 2013 06 26, 9:38 pm CDT

@35: Oh, it is from the American Family Association. I am not surprised; they exist in their own universe.

By EsqinAustin on 2013 06 26, 9:41 pm CDT

5. EsqinAustin
Jun 26, 2013 10:43 AM CDT
@4: Obviously not. I mean, a straight judge has an natural, innate appreciation of the legal importance of “traditional” heterosexual marriage that a gay judge just could never have!

Off topic.

By Marc on 2013 06 26, 9:42 pm CDT

@36 - Well, we can let the fact that he adopts his opinions by copy/pasting from notoriously biased, non-legal sources speak for itself. You see why we just basically refuse to interact with him now?

Surely the FFC does have some exceptions, but it should be evident by this point that those exceptions may not, themselves, be based on constitutional violations.

Public policy must be rational. There's some wiggle room for issues like consanguinity that have some legitimate scientific basis. But the policy can't just be based on naked animus or moral disapproval without some rational component, and it cannot be a policy *of* unconstitutional discrimination -- a state could not refuse to honor another state's interracial marriages, for example, or marriages that did not occur on Sundays, did not occur in a Christian church, etc, etc.

By Anonymous on 2013 06 26, 9:51 pm CDT

I will admit that I do not understand the "equal protection" argument. Say a State has a law that says "marriage = one man and one woman." That seems "equal" to me, in that any man can marry any one woman and any woman can marry any one man. Now if a law said, "black people cannot marry," then obviously there is an equal protection violation because in fact some people could not marry at all. Every time a line is drawn, it benefits some people and adversely affects others. But just because a law has different impacts on different people doesn't make it an equal protection violation, right? Otherwise a law that, say, prohibits individuals under 21 from drinking or individuals under 16 from driving would be a violation, because 15 year olds couldn't do either. Or, if the one-man-one woman law is "unequal" for gays, then clearly it is "unequal" for polygamists too, and under this reasoning we need to allow people to have more than one spouse. Seriously, I am not trying to be a troll here, anyone who can explain, please do...

By Just Some Bloke on 2013 06 26, 10:30 pm CDT

@39 - Drinking age laws do implicate the EPC; that does not mean they violate it. For a distinction based on age, rational basis, a very deferential standard, is applied to determine if the law is valid. Drinking age laws pass that standard pretty easily. With respect to marriage laws, you could say that laws that prohibit SSM discriminate against homosexuals because they cannot marry the partners of their choice. It's not clear what level of scrutiny the Supreme Court would applyunder such a view, but even if it was mere rational basis scrutiny, there would have to be more to support such a law than hostility to homosexuality. (If homosexuals should be a constitutionally protected class because of a history of discrimination, the standard would be some heightened form of scrutiny.) On the other hand, laws that prohibit SSM could be described as discriminating on the basis of gender, that is, gender is the deciding factor under that law as far as who can marry whom. Under such a view, the law would have to pass a heightened intermediate scrutiny to be valid under the EPC.

By NoleLaw on 2013 06 26, 10:51 pm CDT

@39 - Before we get into explaining EP, let's change the facts a little and see if that helps.

Suppose the government said "Any two persons of the same race may get married." Would you reach the same conclusion re the lack of an EP problem?

By Anonymous on 2013 06 26, 10:53 pm CDT

Nole did a good job starting off here. The *real* question is "why are things this way?" Yeah, drinking age laws treat people differently. Is there a legitimate, non-moral reason behind that? You betcha.

Is there a legitimate, non-moral reason behind prohibiting marriage between two consenting adults of the same sex? No one's ever been able to demonstrate one that survives scientific peer review.

Is there a legitimate, non-moral reason behind prohibiting marriage between multiple persons? Well, that is a fascinating question...

By Anonymous on 2013 06 26, 10:55 pm CDT

People of the same race get married all the time. If there is a problem with that, I haven't heard of it. Why wouldn't the government allow it?

By B. McLeod on 2013 06 26, 10:56 pm CDT

Sorry, the implication is supposed to be that the government only permits marriage between two persons of the same race.

The idea is that it fits the rest of his hypothetical, and yet we all know that there's a serious EP problem.

And I think it comes down to intent.

There's a serious EP problem when someone is being denied a benefit or opportunity that is available to other similarly-positioned persons and there is no basis for the denial other than animus or naked moral opinion.

By Anonymous on 2013 06 26, 10:59 pm CDT

I agree with your analysis.
This SCOTUS decision sets bad precedent.
Each state enacts its own constitution with its unique provisions. The sponsors of "Prop 8" had no defenders. "Prop 8" was passed by the people of California. The people who did not like "Prop 8" they went to court to overturn it. Jerry Brown and the attorney General refused to defend "Prop 8" because the groups supported them. They choose not to defend the vote of the people of California. So proponents stepped forward and said we will defend it. They defended it to the appellate court and the Supreme Court. SCOTUS then said you have no standing. This means that the populace has no ability to appeal because the governor and attorney general refused to prosecute.
This is disenfranchisement.
So, the end result is the precedent that if politicians in charge (Governor & Attorney General) refuses to defend any legislative or state constitutional provision, the populace lacks any standing to defend the law or constitutional provision.

By Pacific on 2013 06 27, 6:30 am CDT

It seems to me the remedy of the people of California, to the extent they have one, is to try to put out the officials who would not defend the law they voted to adopt. That will probably not get them anywhere in terms of the measure that was overturned, but would make officials think twice about refusing to defend future voter-enacted measures.

By B. McLeod on 2013 06 27, 6:52 am CDT

More likely the officials who refused to defend Prop 8 will receive an electoral boost. It is California, after all, and the only reason that Prop 8 passed was because the one thing that surpasses Californian's general liberality is their general apathy to everything not related to surfing or fish tacos. The passage of Prop 8 was a wake up call that caught many people (most of whom did not bother to vote) off guard.

By NoleLaw on 2013 06 27, 12:41 pm CDT


The better hypo would be if a state defined marriage as only between a man and a woman of the same race.


The problem there is that the district court determined the law was unconstitutional. The procedural question addressed by the Supreme Court wasn't whether the people defending the law at the district court level had standing, but whether they had standing to appeal the decision of the lower court.

The Supreme Court found they did not, which left intact the district court ruling.

By OKBankLaw on 2013 06 27, 1:48 pm CDT

If we Californians wanted a governor who would have defended Prop. 8, we'd have elected Meg Whiteman instead of Jerry Brown. We did not. That is why today she is driving Hewlett Packard into rui and obscurity instead of California, which now (unlike the USA and mots other states) finally has a balanced budget.

By AndytheLawyer on 2013 06 27, 2:35 pm CDT

Good ol' Jerry Brown. I lived in LA when he was governor the first time. Say what you like about him, and there's plenty to say, you don't really have to wonder what he's thinking.

By OKBankLaw on 2013 06 27, 3:25 pm CDT

@45 "“Prop 8” was passed by the people of California."

What a load of mendacious, conservative hogwash, Pacific!
Prop 8 was NOT passed by the 'people' of California as if the vast overwhelming number of Californians, or even a majority of Californians, supported Prop 8. An honest look at the Prop 8 vote shows that the facts speak differently. Of the about 17.3 million people registered to vote in California in 2008, only about 7 million registered CA voters actually voted for Prop 8 while 6.4 million registered CA voters voted against Prop 8, leaving a gap of only about 600,000 votes between the two. This leaves almost 4 million registered CA voters who didn’t vote on Prop 8. On such a hot button issue, it’s not too much of a stretch to say that these 4 million voters were either apathetic or ambivalent about Prop 8 at best. Thus, the majority of the 'People' of CA did not vote in favor of Prop 8, nor did the majority of registered CA voters vote in favor of Prop. 8. And even then, in America, we don't decide constitutional rights by majority vote.

By faddking on 2013 06 27, 3:37 pm CDT

It was very clear to judges not long ago that marriages between blacks and whites, but also in many states, whites and filipinos, hawaiians, native americans, and others, were "unnatural"; such marriages were not recognized, and the penalty was for illegal fornication. The penalties involved substantial prison terms, and down south, occasional lynchings.

What is clear to people in one generation seems insane to the next.

So shall it be with gay marriage.

Don't be an old embarrassing freak to your grandchildren. I guarantee you will embarrass the living crap out of them, just as I was mortified by my older male relatives who talked about women and their mental abilities like the misogynists in Mad Men.

Get with the times...or be a weird old codger.

By defensive lawyer on 2013 06 27, 3:38 pm CDT

G-d was often invoked to justify anti-miscegenation laws too, in several opinions. There's probably a bible quote or two to justify that practice...

By defensive lawyer on 2013 06 27, 3:42 pm CDT

Nole @ 40, thanks for your post. I guess my conclusion is that "rational basis" is simply an unworkably quishy "standard" that can way too easily be molded to anyone's personal or political preferences. You summarily say that a drinking age "easily" passes a rational basis test, and Anonymous says there is a "non-moral" reason behind it (why our reasons have to be amoral, I'm not sure), yet, most of Europe does not have a drinking age, so apparently the people there believe (as I tend to) that such a law is irrational. Other countries ban alcohol entirely, which they obviously must think is rational yet I find insane. There are plenty of people over 21 who can't handle their drink, and plenty of younger people who can. Given the (still ongoing) history of intemperance and prohibition in our country, I for one firmly believe the law is based on perceived "morality," as many of our laws are.

Anyway, you say that one-man-one-woman marriage laws "discriminate against homosexuals because they cannot marry the partners of their choice." Well, not be be glib, but millions of people can't marry the person of their choice, for all sorts of reasons. Again, *any* rule of any nature will benefit some and harm others. And if you want a "rational basis" for why "marriage" should be limited to opposite sexes (albeit not necessarily just *one* of each), I'd say the obvious ones are to promote social stability between the genders and subsidize the raising of offspring in what, historically, has been the optimal environment of a mother and father, to enhance the chances of human survival. As I mentioned in a post in another thread, certainly anyone can see that this basis has degraded over the past 50 years (due largely to the welfare state in my opinion, but that's a whole other topic), so if we no longer believe that, then the gov't should no longer subsidize marriages of any sort, I agree. But please don't bother with the "not all marriages can or do result in children" argument, because just because it's not a requirement in every case doesn't mean it isn't/can't be the (or at least a) primary purpose. Just because a ballplayer doesn't try to get a hit every time he's up at the plate doesn't change the fact that that is generally the primary purpose of a batter.

Anonymous @ 41, you're changing the topic and begging the question, but, just to clarify, I am not at all reaching any "conclusion" on EP, I'm just trying to better understand the *Constitutional* basis for the Court's decision (as opposed to subjective arguments of "fairness" or "how it should be"). Re your hypothetical, I guess I'd say that if men and women of different races were biologically incapable of producing offspring together (or, as with anti-incest provisions, such offspring were much more likely to be genetically mutated), then I could see a rational basis for such a law, because I see the general production and well-being of offspring as the, or at least a, primary purpose of the institution of marriage. As far as your last sentence @ 44, about "similarly-positioned persons," I think that's a good point, but you have to recognize that, for the time being at least, there is a genuine difference of opinion in our country as to whether gay couples *are* similarly-situated to heterosexuals when it comes to marriage.

By Just Some Bloke on 2013 06 27, 3:45 pm CDT

@54 - I don't mean to change the topic -- but begging the question is entirely the purpose of changing hypotheticals to try to teach, which is exactly what I was trying to do. I meant no offense and intended no slipperiness. The hypothetical was designed to show you why no one has ever seriously or successfully made the "sure, you have equal rights, as long as you marry a person of the opposite sex" argument when trying to argue that restrictions on marriage are valid.

Yes, you've pointed out some good rational bases for some types of marriage restrictions. (Assuming for the moment that it's rational to link marriage to procreation at all, and there's probably little reason to actually think that's the case!) I think you're going in the right direction -- if none of those things are true (and we know they aren't), then there is a serious EP problem with that type of marriage restriction despite the fact that the persons are "equally" free to marry someone of the same race.

On the last point, you may be mistaken somewhat depending on whose opinions you're referring to. If you mean moral opinion, then you're right -- opinions are like strings and every yo-yo has one. There are no thought police, everyone is entitled to an opinion. But moral opinions (alone) cannot be a rational basis (much less enough to satisfy any higher standard of review were it to be applied). And therefore even if the statement is true, it has no impact on an EP analysis.

If you mean the opinions of experts, then it's not true. There is no dispute among credentialed experts using established and peer-reviewed methodologies on this point.

By Anonymous on 2013 06 27, 3:59 pm CDT

The ruling was that the sponsors of the referendum didn't have standing to appeal the trial court's decision. Only the State could do that, and it chose not to. Some are arguing along the lines of 'if the State won't defend the will of the people, then someone should be able to'. But this case wasn't about *defending* the referendum - that WAS done at the trial court level. It was about who can appeal if the State loses at trial.

So -- does the State have an *obligation* to appeal a trial court's ruling if it loses? Under what circumstances? How far are they obligated to take it: appeal before a panel of the Court of Appeals, appeal to the full Court of Appeals en banc, all the way to SCOTUS? Or is the State allowed to say, 'ok, we lost at trial, so that's it'?

By Netochka Nezvanova on 2013 06 27, 4:44 pm CDT

@ 54 - "...because I see the general production and well-being of offspring as the, or at least a, primary purpose of the institution of marriage."

I'd say that marriage has always been fundamentally about altering the property rights of people in the marital (martial?) relationship with respect to each other and third parties. While child rearing can come into the equation and is certainly affected by marriage, that is only a secondary consideration. But we are getting a bit off Hollingsworth, aren't we?

To paraphrase @1, whatever your feelings about the legitimacy of gay marriage, you probably would have to concede that private individuals with no concrete injury do not have standing under Art. III to appeal decisions they dislike. @46 is right, after all; the decision not to appeal was a political one within the discretion of policymakers, and the political process does impose a check on that discretion.

The press likes to call it "punting", but most observers were not too shocked about the standing hurdle here; the majority did not engage in contortionism to decline to decide the case on the merits. Standing is an important aspect of jurisprudence after all.

By NoleLaw on 2013 06 27, 5:58 pm CDT

Without commenting on the lower court ruling:

This law was enacted via ballot proposition.
Wouldn't "voter rights" tell us that any voter who voted in that election had standing to ensure that the votes were counted correctly AND that the results came to pass?

Picture this:
The voters of California hold an election for governor. The winning candidate is not allowed to take office. Would the courts say that only the sitting governor or A.G. has standing to seek relief?
Of course not. Any voter should have standing to argue that votes be counted and the will of the majority be carried out.
If that result was something unconstitutional, then the result can be struck down on the merits.

But to say that only an elected official has standing with respect to a ballot propositions is absurd. The reason the ballot propositions exist is as a way to go AROUND the elected officials.

By Steve on 2013 06 28, 1:57 pm CDT

@58 -- The missing element of your analysis is that, for Art. III standing, there has to be some sort of identifiable injury, or a real threat of one, to confer standing.Having a law that one supported invalidated, without more, is not sufficient. As has been pointed out on this thread, if the Prop 8 supporters could have articulated some particular harm to them to confer standing, they would have done so.

By NoleLaw on 2013 06 28, 6:49 pm CDT

@59 - Nole, I've been thinking. I'd like your thoughts on something.

Hollingsworth says there's no standing because there's no injury. Permitting gay marriage causes even its staunchest opponents no injury significant enough to confer Article III standing.

Does Hollingsworth say more than it first appears? In other words...

... how can there be a rational basis to prohibit something if allowing it does not cause injury sufficient to confer standing?

By Anonymous on 2013 06 28, 6:52 pm CDT

@60 - You threw me for a loop there (and great question btw), but I don't think the analyses have to be connected. After all, the court here found that there was no standing to challenge the invalidation of legal distinction (i.e. ban on SSM, as opposed to mixed sex marriage) l. If a drinking age law was invalidated (on EPC grounds), who would have standing to challenge/appeal the invalidation aside from the government? That in itself does not mean that some sort of drinking age could not be imposed.

In other words, when would anyone other than the government have standing to challenge the invalidation of a law that is invalidated on EPC grounds? I'm not completely satisfied with my answer, feel free to elaborate...

By NoleLaw on 2013 06 28, 7:10 pm CDT

I guess I was just thinking in terms of -- well, if X doesn't cause an injury sufficient to confer standing, how can there possibly be a rational basis for prohibiting X?

By Anonymous on 2013 06 28, 7:11 pm CDT

Well, back to the drinking age analogy (not perfect, but at least we're in rational basis land), would anyone have standing to challenge a ruling holding a certain drinking age to be invalid, which ruling would create a situation where no drinking age was in place? What would be one's injury for Art. III purposes in such a scenario? Still, a drinking age can be imposed...

By NoleLaw on 2013 06 28, 7:17 pm CDT

Nole, that's a good point.

But with the drinking age hypo -- isn't it possible that private parties *could* have an injury in the form of increased safety risks due to underage drinking? Or is that too hypothetical?

I think maybe you're right. It's compelling when you sort of *say it*, but maybe it doesn't hold water legally.

But even if not legally, there has to be some argument of ethos there. "Look, if you'd shown a way that gay marriage actually hurt you or society, you'd have an injury and have standing."

By Anonymous on 2013 06 28, 7:54 pm CDT

Well like I said, I'm not completely satisfied that I can only answer your question with another question with a far-fetched hypo... With you 100% on the last one.

By NoleLaw on 2013 06 28, 8:11 pm CDT

Opponents of same-sex marriage need to give it up.
Their fight is a losing one and it is getting worse for them day by day.
Face it.
Gays and lesbians are getting married and it is legal.
Before long, it will be legal in every state.
Time to face the facts.
Same-sex marriage is here to stay.

George Vreeland Hill

By George Vreeland Hill on 2013 07 01, 7:01 pm CDT

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