The Prop 8 Case — Part 1

by Ed Whelan

I feel a bit like a coroner examining the corpse of the American body politic. That said, here is my overview, with some commentary, on today’s Prop 8 ruling (in Hollingsworth v. Perry).

1. By a vote of 5 to 4, the Court ruled that Prop 8 proponents did not have standing to appeal the district court’s decision adverse to Prop 8. The Chief Justice wrote the majority opinion, joined by Scalia, Ginsburg, Breyer, and Kagan. Justice Kennedy wrote the dissent, joined by Thomas, Alito, and Sotomayor. The opinions are devoted entirely to the standing issue and do not touch on the constitutional claims asserted against Prop 8.

2. The Court vacates the Ninth Circuit’s ruling (which, like the district court’s, invalidated Prop 8) and remands “with instructions to dismiss the appeal for lack of jurisdiction.” The Court doesn’t specifically address what ought to happen then to the district court’s judgment.

From my first read, I don’t think that the Court speaks to the question whether there was genuine adverseness at the district-court level. It does say that plaintiffs “had Article III standing” to challenge Prop 8, but that question is distinct from the question whether the refusal of state officials to defend Prop 8 deprived the district court of the adverseness necessary to have a justiciable case or controversy.

For now, I’ll refer readers once again to law professor Vik Amar’s analysis (emphasis added):

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacatedThe named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.”  A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask:  If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

The default judgment would provide a victory only to the particular plaintiffs.

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