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.]

 

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Guest blogging at Concurring Opinions

It’s a great honor to be guest-blogging at www.concurringopinions.com 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.