The Supreme Court’s Decision in Hollingsworth v. Perry Effectively Renders Prop 8 Unconstitutional

[Cross posted from concurring opinions]

The Supreme Court’s decision in Hollingsworth v. Perry, issued today, will have something of a domino effect on the rights of Californians:  The Supreme Court dismissed the defendants’ appeal on standing grounds, thereby reinstating a district court ruling that held Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution, thereby reinstating a 2008 California Supreme Court rulingthat effectively created a state constitutional right to same-sex marriage.

The Perry Court’s immediate ruling is narrow:  Prop 8′s civilian defenders do not have standing to challenge the district court’s invalidation of the law.  Any defense of the law on appeal would have to come from California officials, who declined to defend Prop 8 or appeal the district court ruling finding it unconstitutional.

The Supreme Court’s decision effectively reinstates the lower court decision by California District Judge Vaughn Walker, which “declared Proposition 8 unconstitutional, permanently enjoining the California officials named as defendants from enforcing the law, and ‘directing the official defendants that all persons under their control or supervision’ shall not enforce it.”   (See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal.)).

The effect of the Supreme Court’s decision in Perry is complicated by this particular twist: California officials enforced Prop 8, but declined to defend it.


The fact that California officials enforced Prop 8 explains why the plaintiffs (supporters of gay marriage) had standing to challenge it before the district court.  The plaintiffs won that challenge, and California officials declined to appeal that decision. The fact that California officials declined to defend Prop 8 explains why there was no case or controversy on appeal (or at the Supreme Court).  California accepted the district court’s holding, and there was therefore nothing left to appeal.

Here’s another confusing aspect of the Supreme Court’s decision.  After Perry, gay marriage is a state constitutional right in California (per the State Supreme Court’s previous ruling), and attempts to change that state constitutional right (e.g., Prop 8) are unconstitutional under the federal constitution — but strictly speaking, only in California (specifically the Northern District, where Judge Walker issued his ruling).

At least that’s my understanding.  The upshot is, it looks like California will join the growing number of states where same-sex marriage is legal.

[UPDATE – See comment thread below, and Marty Lederman’s post on Scotusblog, for a discussion of whether the district court’s ruling and injunction apply outside of the Northern District; whether the governor can force all counties to abide by the district court’s injunction; and whether the answer to these questions will change the facts on the ground regarding who can get married in California and where].

[UPDATE 2 – And here is AG Harris’s analysis, arguing that the District Court’s ruling invalidating Prop 8 applies statewide.]


Guest blogging at Concurring Opinions

It’s a great honor to be guest-blogging at for the next month or so. Catch my first two posts, on the Supreme Court’s recent decision in Maryland v. King, here:

I’m thrilled to be guest-blogging at Concurring Opinions just in time for Maryland v. King, the Supreme Court’s decision today on the constitutionality of DNA testing. The Court held (5-4) that the police’s collection (and testing) of King’s DNA after his arrest for a violent crime, and pursuant to Maryland’s public safety statute, was a reasonable search under the Fourth Amendment.

Though the case’s up/down holding is straightforward enough, the majority’s rationale is not. Read in a vacuum, the majority opinion reads as a full-throated legal and policy defense of the government’s use of DNA to verify a suspect’s identification at various stages following a lawful arrest.

But this case—and indeed, the Maryland statute at issue—was not merely about the use of DNA testing for a routine purpose ancillary to police investigations, such as verifying a suspect’s identification. It was, instead, also about the use of suspicionless DNA searches as part of the police’s quintessential activity: investigating and solving crimes.  And that is precisely the conduct which the majority’s opinion authorizes.  (Do read Justice Scalia’s dissent, which argues this point persuasively).

and here

This is a follow-up to my previous post on the Supreme Court’s recent decision in Maryland v. King, which upheld, over a scathing dissent by Justice Scalia, the constitutionality of DNA searches of arestees for “serious offenses” under Maryland’s public safety statute.  One open question after King is how the majority’s rule would apply to other states’ DNA collection statutes, which permit DNA collection for a broader range of offenses than does Maryland’s statute.

The King majority repeatedly limited its holding to DNA searches that followed arrests for a “serious offense.” But what counts as a serious offense?  This is a live question in Haskel v. Harris, the ACLU’s challenge to California’s DNA collection law (Prop. 69). According to the ACLU, California’s law would permit DNA collection for arrests on suspicion of “simple drug possession, joyriding, or intentionally bouncing a check.” An en banc panel of the Ninth Circuit is considering the case in light of Maryland v. King. If the ACLU’s characterization is correct, then California’s law may not survive intact underKing’s “serious offense” limiting principle.

The Fourth Amendment’s Future

Shortly after the Supreme Court issued its decision in US v. Jones, my (former) colleague Micah and I — who had written much of the brief together — reflected on the decision’s implications for Fourth Amendment law in a post on the ACS blog titled “The Fourth Amendment’s Future.”  

While a number of people in the privacy community thought Jones didn’t go far enough (I recall Tom Goldstein, a prominent Supreme Court advocate, calling the decision a potential “nothingburger”) we argued the Jones opinion was important proof that the Fourth Amendment is resilient enough to survive technological change.  

Here’s what we wrote (original here), with some thoughts in hindsight:

The Fourth Amendment’s Future

In June of last year, Chief Judge Alex Kozinski and one of his law clerks wrote a eulogy for the Fourth Amendment, in which they mournfully concluded that “[w]ith so little left private, the Fourth Amendment is all but obsolete.” With the benefit of hindsight, it seems the eulogy may have been premature. On Monday, the Supreme Court handed down its decision in United States v. Jones, and unanimously held that the government violated Antoine Jones’s Fourth Amendment rights by surreptitiously monitoring his vehicle’s movements on public roads for four weeks. The Court’s decision is a ringing endorsement of the Fourth Amendment as a bulwark of liberty — and of the Amendment’s relevance to the surveillance technologies of the twenty-first century.

As members of Antoine Jones’s legal team in the Supreme Court, we thought we’d offer a few thoughts on the case and its implications. Given the significant amount of commentary that is already available on the blogosphere, we won’t dwell too much on the details. (For readers interested in a more granular analysis, we recommend Tom Goldstein’s post atSCOTUSblog. Or Orin Kerr’s several posts atThe Volokh Conspiracy. For readers interested in a broader overview, try Adam Liptak’s article in The New York Times.)

Prior to Jones, there were good reasons to believe the Fourth Amendment was dying. Since the Court decided Katz v. United States over forty years ago, the Amendment’s protections were commonly understood to apply only when the government intruded on a person’s subjective expectation of privacy that society would deem reasonable. The Court had never explicitly overruled earlier cases that pinned the Fourth Amendment to founding-era property concepts, but any commentator familiar with LaFave’s authoritative treatises would have been tempted to conclude that those cases had lost their vitality, or were, in legal jargon, no longer “good law.”

The problem was that at the same time it took on Fourth Amendment primacy, privacy was losing some of its power. This was in part because new and fast-changing technologies — think smart phones, sophisticated data mining techniques, and Google — were at once making our lives more and more convenient and less and less private. It was also perhaps because a new generation of Americans has come of age with Twitter and Facebook and YouTube, and many of us now have a much more complicated relationship with privacy. It’s a relationship that takes for granted that privacy might flourish even in public places, and even in information that has been shared with some people but not everyone. And it’s a relationship the law has been too quick to paint as a lack of any privacy at all.

Perhaps that’s in part what motivated the Court in Jones to write an opinion that ensures the Fourth Amendment would survive the death of the traditional notion of privacy. In a legally groundbreaking majority opinion for the Court, Justice Scalia wrote that the government engaged in a “search” simply because it committed “a physical intrusion of a constitutionally protected area in order to obtain information.” Finding that this “common-law trespass test” was enough to decide the case, the majority passed on applying the alternative “reasonable expectation of privacy test”— or what many would have thought was not the alternative test, but the only one.

It was left to Justice Alito, in an opinion concurring in the judgment, to apply Katz’s privacy-based test to the government conduct. He concluded that the 28-day surveillance of Jones’s movements on public streets was enough to violate Jones’s reasonable expectation of privacy.  Justice Sotomayor embraced both Justice Scalia’s and, to some extent, Justice Alito’s opinions, and wrote a potentially pathmarking concurrence that explained how the reasonable expectation of privacy test should be applied to future technologies and cases. Notably, Justices Alito and Sotomayor recognized that privacy does not wither in public, and Justice Sotomayor went so far as to say that Fourth Amendment jurisprudence should “cease to treat secrecy as a prerequisite for privacy.”

Taken together, these three opinions create what we might call a “big tent” approach to the Fourth Amendment, which should attract both property and privacy rights enthusiasts. It effectively creates a two-step test that lower courts must apply to determine whether a particular government conduct is a Fourth Amendment “search.” First, courts should ask whether the government obtained information through an act amounting to a physical intrusion of a constitutionally protected area — an individual’s person, home, papers, or effects. Such a trespass is presumably always a search, regardless of the scope of the intrusion or the privacy interests at issue. Second, if there is no physical intrusion, court should apply the familiar reasonable expectation of privacy test from Katz, in light of the additional guidance from Justice Alito and Justice Sotomayor’s concurring opinions.

The biggest open question, of course, is how courts will apply these standards in future cases.  Only time will tell. But as several commentators have already noted, the Jones decision’s “big tent” approach leaves open many important questions about how the property- and privacy-based tests should be applied in new situations, particularly in those involving emerging surveillance technologies.

We predict that the fate of each of these tests is likely to be driven by the Justices who are perhaps least likely to be sympathetic to the interests the tests preserve.

On the one hand, Justice Alito has taken a leading role in articulating how privacy should be understood and applied in cases involving emerging technologies. It might be fair to say, however, that in comparison to the other Justices sympathetic to the privacy test — Justices Ginsburg, Breyer, Sotomayor, and Kagan — Justice Alito is the least likely to apply the test expansively in future cases. On the other hand, Justice Sotomayor has cast herself in a leading role in articulating how the Court’s new common-law trespass test should be understood and applied in future cases. As the fifth vote for the property-driven standard, she is likely to play an influential role in determining the test’s fate. And she is probably the least likely of the other Justices who have embraced the common-law trespass test — the Chief Justice and Justices Scalia, Kennedy, Thomas — to apply the property-centric test expansively.

Time holds many mysteries. The more nuanced view of privacy that Justices Alito and Sotomayor embraced might lead to a reasonable-expectation-of-privacy test that will survive technological advances. Or perhaps the common-law trespass test will serve as a critical backstop. But one thing was made clear on Monday: the Fourth Amendment is not yet ready to rest in peace.

With a couple year’s distance I think we were more or less right.  The Jones decision was not a “nothingburger.”  This is clear both from the Supreme Court’s application of Jones in subsequent cases, including Jardines, and from the continued attention the case has recieved in the legal academy.  

If the round up from this year’s PLSC papers is any indication, the Jones decision is also on the minds of academics and practitioners working at the forefront of privacy. My own paper at this year’s PLSC is no exception: it seeks to ground the Fourth Amendment’s flexibility in its text, history, and key Supreme Court precedent, including Jones.  More on that soon. 

CRS Report on FBI intelligence gathering

As notes, there is a remarkable quote in this report:

“Intelligence activity in the past decades has, all too often, exceeded the restraints on the exercise of governmental power that are imposed by our country’s Constitution, laws, and traditions,” according to the Congressional Research Service.

The CRS, which shuns polemical claims, presents that assertion as a simple statement of fact (although cautiously sourced to the 1976 Church Committee report) in a newly updated report on FBI terrorism investigations.

The report reviews the FBI investigative process, the statutory framework within which it operates, and the tools at its disposal, along with oversight considerations for Congress.  See The Federal Bureau of Investigation and Terrorism Investigations, April 24, 2013.

CRS reports on domestic drones, super PACs, Amazon tax

Hat tip to for keeping us up to date with the latest CRS reports.  The two reports on domestic drones are excellent primers.   

Other new or newly updated CRS reports include the following.

Integration of Drones into Domestic Airspace: Selected Legal Issues, April 4, 2013

Drones in Domestic Surveillance Operations: Fourth Amendment Implications and Legislative Responses, April 3, 2013

Super PACs in Federal Elections: Overview and Issues for Congress, April 4, 2013

“Amazon” Laws and Taxation of Internet Sales: Constitutional Analysis, April 3, 2013

FutureGen: A Brief History and Issues for Congress, April 3, 2013

Congressional Redistricting and the Voting Rights Act: A Legal Overview, April 2, 2013

The Temporary Assistance for Needy Families (TANF) Block Grant: A Primer on TANF Financing and Federal Requirements, April 2, 2013

The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications, March 27, 2013

Overview of Health Care Changes in the FY2014 Budget Proposal Offered by House Budget Committee Chairman Ryan, March 22, 2013

Cuba: U.S. Policy and Issues for the 113th Congress, March 29, 2013

Google’s brilliance

You might call it leading from behind; you might call it smart, proactive lawyering; or you might call it good business.  Either way, it’s a brilliant move.

Less than a month after a federal judge held that National Security Letters (NSLs) are unconstitutional, Google has decided it will also challenge the practice — and in doing so, it drew the same judge that just held NSLs were unconstitutional, Susan Illston of the Northern District of California.

Once again, Google picked a fight on an important privacy issue, and it did it in a way that makes a win likely, even if it loses.

If it seems like a reoccurring theme, it’s because it is.  Earlier this year Google revealed that it requires a probable-cause warrant for any law enforcement request for user emails and cloud content, despite the fact that the governing federal statute on electronic communications (ECPA) doesn’t always require one.

Google’s cover?  A Sixth Circuit opinion that held that email content is protected by the Fourth Amendment of the US Constitution, and a growing awareness of email privacy issues (in part because of the fallout from the Petraeus affair).  Other email providers soon announced they also require warrants for this information.

Let’s put the substance of these difficult privacy issues aside for a minute — they are tough, and there are valid interests on both sides — and focus on Google’s strategic brilliance.

Google’s foray into high-profile user privacy issues is carefully calculated.  It’s not just that Google has picked battles it can win — both public opinion and the law have already started to turn Google’s way on NSLs and email privacy — it’s that even if Google loses on these issues, its effort will pay off in the long run.

Here’s how Google will win with this latest (some would argue, selective) campaign to protect user privacy:

First, Google will win with its customers, who regularly store private and sensitive photos, documents, and emails on its servers.  Don’t get it twisted — these cases are not just about privacy, they are also about business.  A world where government has easy access to cloud-based information is a world where Google’s services are less valuable.  And a world where customers see Microsoft and Twitter following Google’s lead on privacy issues is a world where Google’s stock stays at an all time high.

Second, Google will win the public relations battle. Google has had mixed reviews on user privacy.  Let’s put it this way: there is a 29-page wikipedia page called “criticism of Google,” and an entire section of the article is about privacy.  But I suspect that if you ask people what they think about Google’s privacy practices today, they are much more likely to think of transparency reports and Google’s lawsuits against the FBI than about Google’s recent street view controversy.

Third, it will win with its critics in the privacy and civil liberties community, who must once again give Google their grudging respect.  This is beginning to become a reoccurring theme, going back to Google’s decision to pull out of China and its recent decision to include NSL data in its transparency reports.

Fourth, Google will win political leverage over regulators, by showing them that it is willing to use the courts to get its way.  Take ECPA reform. Until very recently, law enforcement officials were fighting hard to prevent changes to email privacy laws, which allowed them to get email and cloud data without a warrant under certain circumstances. But last month, the Department of Justice argued before congress that key provisions of the law are “unprincipled” and should be updated.

What gives?  Here’s one possibility: once Google decided it would require a warrant for law enforcement requests for email and cloud data, others — including Yahoo, Microsoft, and Facebook — announced similar policies.  That put the DOJ in a tough position: either fight the decision in the courts, and risk permanently losing the right to get warrantless access to cloud data, or avoid a court battle by asking congress to reform the privacy laws, even though such reform will invariably be a multi-stakeholder process (and of course, Google is sure to be one of the stakeholders).

And finally, with these moves Google will win with prospective hires, including the talented 20-something engineers who want to join a company that cares about the issues they care about.

Put it all together and it’s a win for Google.  Whether you’re a fierce critic of Google’s privacy practices or ready to drink the cool-aid you have to admire the company’s strategic acumen.