Prop 8 Appeal Lacked Standing: SCOTUS

By Brett Snider, Esq. on June 26, 2013 | Last updated on March 21, 2019

The long awaited gay marriage case, Hollingsworth v. Perry, ended in a procedurally dramatic way on Wednesday, with the Supreme Court vacating and remanding the Ninth Circuit's decision based on a lack of standing.

In a 5-4 decision, the Perry court determined that private parties do not have standing to defend the constitutionality of a state law "when state officials have chosen not to," reports the Huffington Post.

Though this case was not decided on the merits, it does have long-standing (no pun intended) consequences for gay marriage in California.

Standing? Oh Wait, We Needed Standing?

The petitioners in Perry were a group of California citizens who were concerned with the state's refusal to defend the constitutionality of Proposition 8 (Prop 8), but ultimately no differently situated than any other citizen of California.

The Supreme Court has stated before and affirmed in Perry that it wouldn't consider a "generalized grievance" sufficient to confer standing, despite how aggrieved the Prop 8 proponents may feel.

The High Court backhanded the Ninth Circuit for attempting to certify the question of Article III standing to the Prop 8 proponents, reminding everyone that states cannot give parties who lack standing "a ticket to the federal courthouse."

Article III standing is the province of the federal courts, so despite what the California Supreme Court certified in Perry v. Brown, the petitioners still don't present any injury or interest that would constitute standing in federal court.

Stay on Gay Marriage Order

In early 2010, the Ninth Circuit placed a stay on the enforcement of Judge Walker's decision in Perry v. Schwarzenegger, which effectively froze gay marriage in California while the case was litigated up to the Supreme Court.

Now that the Perry Court has vacated the Ninth Circuit's ruling on standing and remanded it back to the Ninth, the next step should be lifting the stay on the district court's judgment.

As the Los Angeles Times reports, Supreme Court decisions usually take 25 days to become final, and Governor Jerry Brown is "expected to enforce Walker's order statewide" sometime next month.

Tired of Waiting at the Alter

As Kate Kendell of the National Center for Lesbian Rights said more bluntly of Prop 8 this morning, many Californians are sick and tired of waiting for marriage equality.

To be frank, nothing has stopped California state officials from ignoring the state's official laws on marriage, like former San Francisco mayor and now Lt. Governor Gavin Newsom did when he started marrying gay couples back in 2004 at San Francisco City Hall.

Those Prop 8 proponents still upset with the Supreme Court's decision in Perry (which included the gay marriage-prickly Scalia in the majority) may attempt to limit Judge Walker's order to only those plaintiffs named in Perry, but based on the constitutional findings of Judge Walker's decision, it seems unlikely to succeed.

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