Hollingsworth v. Perry

Decision Date26 June 2013
Docket NumberNo. 12–144.,12–144.
Parties Dennis HOLLINGSWORTH et al., Petitioners v. Kristin M. PERRY et al.
CourtU.S. Supreme Court

Charles J. Cooper, for the petitioners.

Theodore B. Olson, for the respondents.

Donald B. Verrilli, Jr., Solicitor General, for the United States as amicus curiae, by special leave of the Court, supporting the respondents.

Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Christine Van Aken, Aileen M. McGrath, Vince Chhabria, Mollie M. Lee, Sara J. Eisenberg, Leila K. Mongan, Deputy City Attorneys, San Francisco, CA, for Respondent City and County of Francisco.

David Boies, Boies, Schiller & Flexner, LLP, Armonk, NY, Theodore J. Boutrous, Jr., Christopher D. Dusseault, Theane Evangelis Kapur, Enrique A. Monagas, Joshua S. Lipshutz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Theodore B. Olson, Matthew D. McGill, Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, DC, Jeremy M. Goldman, Boies, Schiller & Flexner, LLP Oakland, CA, for Respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo.

Andrew P. Pugno, Law Offices of Andrew P. Pugno, Folsom, CA, David Austin R. Nimocks, James A. Campbell, Alliance Defending Freedom, Washington, DC, Charles J. Cooper, David H. Thompson, Howard C. Nielson, Jr., Peter A. Patterson, Cooper and Kirk, PLLC, Washington, DC, for Petitioners.

Chief Justice ROBERTS delivered the opinion of the Court.

The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry. That question has also given rise to litigation. In this case, petitioners, who oppose same-sex marriage, ask us to decide whether the Equal Protection Clause "prohibits the State of California from defining marriage as the union of a man and a woman." Pet. for Cert. i. Respondents, same-sex couples who wish to marry, view the issue in somewhat different terms: For them, it is whether California—having previously recognized the right of same-sex couples to marry—may reverse that decision through a referendum.

Federal courts have authority under the Constitution to answer such questions only if necessary to do so in the course of deciding an actual "case" or "controversy." As used in the Constitution, those words do not include every sort of dispute, but only those "historically viewed as capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.

For there to be such a case or controversy, it is not enough that the party invoking the power of the court have a keen interest in the issue. That party must also have "standing," which requires, among other things, that it have suffered a concrete and particularized injury. Because we find that petitioners do not have standing, we have no authority to decide this case on the merits, and neither did the Ninth Circuit.


In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384. Later that year, California voters passed the ballot initiative at the center of this dispute, known as Proposition 8. That proposition amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." Cal. Const., Art. I, § 7.5. Shortly thereafter, the California Supreme Court rejected a procedural challenge to the amendment, and held that the Proposition was properly enacted under California law. Strauss v. Horton, 46 Cal.4th 364, 474–475, 93 Cal.Rptr.3d 591, 207 P.3d 48, 122 (2009).

According to the California Supreme Court, Proposition 8 created a "narrow and limited exception" to the state constitutional rights otherwise guaranteed to same-sex couples. Id., at 388, 93 Cal.Rptr.3d 591, 207 P.3d, at 61. Under California law, same-sex couples have a right to enter into relationships recognized by the State as "domestic partnerships," which carry "the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law ... as are granted to and imposed upon spouses." Cal. Fam. Code Ann. § 297.5(a) (West 2004). In In re Marriage Cases, the California Supreme Court concluded that the California Constitution further guarantees same-sex couples "all of the constitutionally based incidents of marriage," including the right to have that marriage "officially recognized" as such by the State. 43 Cal.4th, at 829, 76 Cal.Rptr.3d 683, 183 P.3d, at 433–434. Proposition 8, the court explained in Strauss, left those rights largely undisturbed, reserving only "the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law." 46 Cal.4th, at 388, 93 Cal.Rptr.3d 591, 207 P.3d, at 61.

Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California's Governor, attorney general, and various other state and local officials responsible for enforcing California's marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout this litigation. The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec.Code Ann. § 342 (West 2003)—to intervene to defend it. After a 12–day bench trial, the District Court 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. Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1004 (N.D.Cal.2010).

Those officials elected not to appeal the District Court order. When petitioners did, the Ninth Circuit asked them to address "why this appeal should not be dismissed for lack of Article III standing." Perry v. Schwarzenegger, Civ. No. 10–16696 (C.A.9, Aug. 16, 2010), p. 2, 2010 WL 3212786. After briefing and argument, the Ninth Circuit certified a question to the California Supreme Court:

"Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so." Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (2011).

The California Supreme Court agreed to decide the certified question, and answered in the affirmative. Without addressing whether the proponents have a particularized interest of their own in an initiative's validity, the court concluded that "[i]n a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so." Perry v. Brown, 52 Cal.4th 1116, 1127, 134 Cal.Rptr.3d 499, 265 P.3d 1002, 1007 (2011).

Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, " ‘has standing to defend the constitutionality of its [laws],’ " and States have the "prerogative, as independent sovereigns, to decide for themselves who may assert their interests." Perry v. Brown, 671 F.3d 1052, 1070, 1071 (2012) (quoting Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) ). "All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm." 671 F.3d, at 1072.

On the merits, the Ninth Circuit affirmed the District Court. The court held the Proposition unconstitutional under the rationale of our decision in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). 671 F.3d, at 1076, 1095. In the Ninth Circuit's view, Romer stands for the proposition that "the Equal Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place." 671 F.3d, at 1083–1084.

The Ninth Circuit concluded that "taking away the official designation" of "marriage" from same-sex couples, while continuing to afford those couples all the rights and obligations of marriage, did not further any legitimate interest of the State. Id., at 1095. Proposition 8, in the court's view, violated the Equal Protection Clause because it served no purpose "but to impose on gays and lesbians, through the public law, a majority's private disapproval of them and their relationships." Ibid.

We granted certiorari to review that determination, and directed that the parties also brief and argue "Whether petitioners have standing under Article III, § 2, of the Constitution in this case." 568 U.S. ––––, 133 S.Ct. 786, 184 L.Ed.2d 526 (2012).


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