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.]