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Proposition 8 (California)  
 
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On the basis of the oral arguments, most Court watchers predicted that marriage equality would soon return to California. The real question, however, was whether Proposition 8 would be invalidated on the basis of a lack of standing or some other procedural question or as the result of a broad decision that extended the fundamental right of marriage to same-sex couples throughout the nation.

That question was answered on the final day of the Supreme Court's term, when it released its rulings on cases challenging the Defense of Marriage Act and California's Proposition 8.

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The Proposition 8 decision was, paradoxically, both a major victory for marriage equality and a disappointing failure by the court to declare a fundamental right to marry the person one loves. Rather than reach the merits of the case, the Supreme Court, in a decision written by Chief Justice Roberts and joined by an unusual coalition of Justices Scalia, Ginsburg, Breyer, and Kagan, ruled that the proponents of Proposition 8 lacked standing to appeal Judge Walker's opinion. The ruling focused specifically on issues of standing, with the result that Judge Walker's opinion was upheld and same-sex marriages resumed in the nation's largest state.

The Chief Justice noted early in his opinion, "Federal courts have authority under the Constitution to answer such questions [of constitutionality] only if necessary to do so in the course of deciding an actual 'case' or 'controversy.' . . . It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives."

In order for the proponents of Proposition 8 to have standing to appeal in federal court, they would have had to demonstrate "a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision."

Chief Justice Roberts pointed out that the District Court had not ordered the proponents to do or refrain from doing anything. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law, and they were neither agents of the state nor authorized to represent the state. "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

The Court concluded, "Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction."

Thus, Judge Walker's historic decision declaring Proposition 8 unconstitutional is the governing decision in regard to Proposition 8. Since the decision is from a District Court rather than an appellate court, it applies only to California and will have only limited precedential value. Still because the decision is carefully considered and based on a thorough trial, it is likely to be influential in future legislation challenging state bans on same-sex marriage.

The litigation over Proposition 8 did not lead to the broad ruling that the American Foundation for Equal Rights had hoped. It did not establish a fundamental constitutional right to same-sex marriage. However, Chief Justice Roberts' ruling did validate a point that marriage equality activists have made over and over again: allowing gay and lesbian couples to marry harms no one. Even the most ardent opponents of same-sex marriage sustain no real injury when gay and lesbian couples are allowed to marry.

Moreover, the long battle against Proposition 8 served the important purpose of educating the public about marriage equality generally. The exhaustive trial conducted by Judge Walker demonstrated clearly the harm caused by the discriminatory proposition and also the irrationality of the discrimination. The fact is that the proponents of Proposition 8 could not find a rational basis to justify the exclusion of gay and lesbian couples from civil marriage.

Most importantly, the litigation succeeded in nullifying the discriminatory Proposition. As a result of the prolonged legal battle, same-sex marriage returned to California after almost five long years of the ban imposed by Proposition 8.

Shortly after the Supreme Court ruling was announced, California Governor Jerry Brown declared that "the district court's injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it."

Although there is a 25-day window during which a petition for rehearing can be filed with the Supreme Court by the proponents of Proposition 8, California Attorney General Kamala Harris asked the Ninth Circuit Court of Appeals to lift the stay of Judge Walker's ruling so that same-sex marriages could resume in the state immediately.

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