In November 2008, 52.3 percent of California voters approved Proposition 8, which added language to the California Constitution that defined marriage as a union between a man and a woman. In May 2009, a California District Court ruled that Proposition 8 violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment and temporarily prohibited its enforcement, and the Ninth Circuit agreed, affirming the District Court’s ruling. The United States Supreme Court will now consider whether a state can define marriage solely as the union of a man and a woman, in addition to considering whether the proponents of Proposition 8 have standing to bring suit in federal court. The Court’s ruling will implicate the rights of gay men and lesbians, the role of the government in structuring family and society, and the relationship between the institution of marriage and religion and morality.
2. Whether petitioners have standing under Article III, §2 of the Constitution in this case.
1. Does a state violate the Equal Protection Clause of the Fourteenth Amendment by defining marriage solely as the union of a man and a woman?
2. Do the official proponents of a state ballot initiative have standing to appeal a judgment invalidating that initiative?
In 2000, California voters adopted Proposition 22, which amended the state’s Family Code to provide that “only marriage between a man and a woman is valid or recognized in California.” See Perry v. Brown, 671 F.3d 1052, 1065 (9th Cir. 2012). In May 2008, the California Supreme Court invalidated Proposition 22, finding that it violated the due-process and equal-protection guarantees of the California Constitution. See id. at 1066–67. The California Supreme Court ordered that marriage be made available to both same-sex and opposite-sex couples, and, in the wake of this order, California issued over 18,000 marriage licenses to same-sex couples. See id. at 1067.
In response to the California Supreme Court decision on Proposition 22, five California residents (“Proponents”) collected voter signatures and filed petitions with the state to place Proposition 8 on the November 2008 ballot. See id.Proposition 8 proposed to add the same statutory language from Proposition 22 to the California Constitution, again defining marriage as a union between a man and a woman. See id. After a contentious campaign, 52.3 percent of California voters approved Proposition 8, and it took effect as an amendment to the California Constitution. See id.
In May 2009, after being denied marriage licenses, two California same-sex couples filed suit under 42 U.S.C. § 1983 in the United States District Court for the Northern District of California, alleging that Proposition 8 violated the Fourteenth Amendment equal protection guarantee of the United States Constitution. See id. at 1068. Because the State of California refused to argue in favor of Proposition 8’s constitutionality, the District Court allowed the original Proponents of Proposition 8 to intervene under Federal Rule of Civil Procedure 24(a) to defend the lawsuit. See id. After a lengthy bench trial, the District Court ruled that Proposition 8 violated the Fourteenth Amendment’s Equal Protection and Due Process Clauses and enjoined its enforcement. See id. at 1069.
The Proponents appealed to the Ninth Circuit. See id. at 1070. The Ninth Circuit held that the Proponents had standing to appeal—in other words, authority to defend Proposition 8 when state officials declined to do so—but it affirmed the District Court’s decision that Proposition 8 violated the Fourteenth Amendment. See id. at 1063, 1070. After the Ninth Circuit denied rehearing, the Proponents appealed to the United States Supreme Court. See Brief for Petitioners, Dennis Hollingsworth et al., at 1, 11. The Supreme Court granted certiorari on December 7, 2012 to determine whether the Proponents have standing in the case and whether Proposition 8 violates the Fourteenth Amendment’s Equal Protection Clause. See id. at i, 1.
This case presents the Supreme Court with the opportunity to consider whether a state can define marriage solely as the union of a man and a woman. See Brief for Petitioners at i. Hollingsworth argues that a state may do so because this definition is a “bedrock social institution” that “advances society’s vital interest in responsible procreation and childrearing.” See id. at v. Perry contends that gay men and lesbians should have fundamental and equal rights to marry and that “‘[r]esponsible procreation’ is not the defining purpose of marriage.” See Brief for Respondents, Kristin M. Perry et al., at i. The Supreme Court’s resolution of the case implicates vigorous debates over optimal familial and societal structure as well as religion and morality.
Optimal Familial and Societal Structure
Hollingsworth and numerous amici argue that limiting marriage to a union between a man and a woman (“traditional marriage”) optimizes responsible procreation and childrearing. See, e.g., Brief for Petitioners at i; Brief of Amici Curiae State of Indiana et al. (“Indiana”) in Support of Petitioners at 16. For example, Indiana and nearly twenty other states contend “the basic rationale for traditional marriage is to encourage biological parents to remain together for the sake of their children.” See Brief of Indiana at 17. According to these states, traditional marriage promotes cohabitation and mutual dedication of biological parents, a behavior that is exclusive to opposite-sex couples, necessary for their children’s welfare and protection, and optimal for family structure as well as society as a whole. See id. at 17–18. The states maintain that traditional marriage among the infertile or elderly does not undermine the institution’s basic purpose, because married, opposite-sex couples without children model the optimal behavior for other opposite-sex couples who may have children. See id. at 18–19. They also emphasize that limiting marriage to opposite-sex couples makes a positive statement about its benefits, rather than a negative statement about the ability of same-sex couples to raise children. See id. at 24.
Perry and supporting amici, including the United States, counter that excluding same-sex couples from marriage destabilizes and stigmatizes their relationships and thereby harms their children. See, e.g., Brief for Respondents at 3; Brief for United States in at 22–23. The American Psychological Association (“APA”) and several supporting medical and social welfare organizations assert that homosexuality is immutable and that gay men and lesbians form stable, committed relationships; deserve the social, psychological, and health benefits of marriage; and are as fit and capable of parenting as heterosexuals. See Brief for APA at ii. In particular, the APA and supporting organizations emphasize that child development is not dependent upon parental gender or sexual orientation and that there is no scientific basis for concluding that children raised by homosexual parents suffer any emotional or psychological harm. See id. at 18–30.
Several social science professors object to the APA’s scientific conclusions, asserting that studies finding no detriment to children raised by homosexual parents are methodologically flawed. See Brief of Social Science Professors in Support of Petitioners at 3–4. The professors instead point to other studies supporting the notion that a stable biological mother and father provide the best environment for raising children. See id.
Religion and Morality
Many of Hollingsworth’s supporters present religious and moral arguments in favor of limiting marriage to between a man and a woman. See, e.g., Brief of Amici Curiae National Association of Evangelicals et al. (“NAE”) in Support of Petitioners at 18. For example, the NAE and several supporting religious organizations explain that their religions “extol the personal, familial, and social virtues of traditional marriage,” while “condemning hatred and mistreatment of homosexuals.” See id. at 18. NAE frames religious and moral support for traditional marriage as a rational position in an honest debate and argues that the debate should be resolved through democratic processes like state ballot initiatives, rather than by judicial decision. See id. at i. The United States Conference of Catholic Bishops (“USCCB”) agrees, asserting that Proposition 8 should not be invalidated because it was informed by religious and moral viewpoints. SeeBrief of Amicus Curiae USCCB in Support of Petitioners at 19–21. USCCB further cautions that defining marriage to include homosexual unions burdens religious liberty and marginalizes individuals who morally disagree. See id.at 21–24.
In its support of Perry, the United States maintains that homosexual marriage does not burden religious liberty and asserts that mere use of the democratic process cannot render discriminatory laws legal. See Brief at 8–9, 28 n.7. The Anti-Defamation League, meanwhile, argues that some religious and moral justifications for traditional marriage are simply a pretext for discrimination and that religious and moral views about marriage are changing. See Brief of Amici Curiae Anti-Defamation League et al. in Support of Respondents at 3–4. Indeed, numerous religious amici support homosexual marriage and argue that state recognition of the practice does not interfere with other religious organizations’ freedom not to sanction it. See Brief of Amici Curiae Bishops of the Episcopal Church in the State of California et al. in Support of Respondents at i–ii.
In sum, this case presents the Supreme Court with the opportunity to determine whether a state can define marriage solely as the union of a man and a woman. The Court’s ruling will implicate the rights of gay men and lesbians, the role of the government in structuring family and society, and the relationship between the institution of marriage and religion and morality.
Before reaching the issue whether the Equal Protection Clause prohibits California from defining marriage as the union of a man and a woman, the Court must determine whether petitioners have standing to bring the suit before the Court. Hollingsworth argues that he has standing as an official proponent of Proposition 8 to defend the constitutionality of the initiative in lieu of state officials who have refused to do so. See Brief for Petitioners at 15. Perry contends that proponents of Proposition 8 have suffered no injury and have no continuing stake in the litigation, and thus do not have standing. See Brief for Respondents at 17.
Once the Court determines the issue of standing, Hollingsworth urges the Court to overturn the Ninth Circuit and hold that Proposition 8 does not violate the Equal Protection Clause. See Brief for Petitioners at 31. Hollingsworth asserts that Proposition 8 is rationally related to the government’s interest in promoting responsible procreation and childrearing. See id. Perry counters that the amendment should be subjected to heightened scrutiny because sexual orientation is a suspect classification, but contends that Proposition 8 fails any standard of review—even rational basis. See Brief for Respondents at 36.
Do Petitioners Have Standing?
Under Article III of the Constitution, plaintiffs must have suffered some injury to bring suit in federal court. Respondents argue that because petitioners have never asserted suffering any harm, they have no direct stake in the outcome of the litigation and thus do not have standing on appeal. See Brief for Respondents at 16–17 (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)).
Hollingsworth, however, notes that California has a clear interest in the continued enforceability of its laws and has standing to defend the constitutionality of those laws. See Brief for Petitioners at 15. Because, according to petitioners, the state has failed to defend the constitutionality of Proposition 8, proponents of the amendment have standing to defend the initiative as “‘agents of the people’ of California.” See id. (quoting Karcher v. May, 848 U.S. 43, 65 (1997)). Hollingsworth analogizes this case to Karcher v. May, in which the Supreme Court held that the presiding officers of the New Jersey legislature had standing to defend a state statute when neither the state attorney general nor named defendants would do so. See id. at 16. Here, Proposition 8 was a ballot initiative and constitutional amendment (rather than a statute), and Hollingsworth and his fellow petitioners were official proponents of Proposition 8 (not legislators); but Hollingsworth contends that California courts routinely permit the official proponents of an initiative to appear in defense of that initiative in Court. See id. at 9, 16. Petitioners distinguish this case from Arizonans for Official English v. Arizona—in which the Supreme Court expressed “grave doubts” about the standing of Arizonan initiative sponsors—noting that here, as opposed to Arizona, California law does grant standing to initiative supporters. See id. 16. Finally, petitioners argue that if the Supreme Court determines that proponents of Proposition 8 do not have standing, the opinions of the Ninth Circuit and the district court must be vacated, and any relief by default judgment must be limited to the four named plaintiffs. See id. at 17–18.
Perry asserts that proponents of Proposition 8 will suffer no judicially cognizable harm if same-sex couples are allowed to marry. See Brief for Respondents at 17. Lacking any showing or even assertion of harm, Perry claims that Hollingsworth does not have a sufficient stake in the litigation to justify standing. See id. Relying on the Court’s “grave doubts” in Arizonans, Perry claims that mere status as a proponent of an initiative is insufficient to confer Article III standing. See id. Perry distinguishes this case from Karcher, arguing that proponents of a ballot initiative—who, unlike the officers of the New Jersey legislature in Karcher, are not public officials—do not have a close enough relationship to the state to act on its behalf in litigation. See id. Perry further argues that if Hollingsworth lacks standing, the district court’s injunction invalidating Proposition 8 statewide is still valid because Hollingsworth failed to object to the scope of the injunction in the district court and further waived the issue by failing to raise it in their petition for certiorari. See id. at 18. Furthermore, Perry contends that irrespective of waiver, the district court’s injunction was appropriate because the injunctive relief does directly redress the named plaintiffs’ injuries and because Proposition 8 imposes an identical injury on all gay men and lesbians in California. See id. at 18–19.
Does Proposition 8 Violate the Equal Protection Clause of the Fourteenth Amendment?
What level of scrutiny should apply?
Under the Equal Protection Clause, laws that categorize people on the basis of suspect classifications are subject to heightened scrutiny. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (quoting Korematsu v. United States, 323 U.S. 214, 216 (1944)) (applying “the ‘most rigid scrutiny’” to classification based on race); Craig v. Boren, 429 U.S. 190 (1976) (applying intermediate scrutiny to classification based on sex). Laws that categorize based on some other classification must only pass rational-basis review. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (applying rational-basis review to classification based on mental disability). Racial classifications must pass strict scrutiny, which mandates that such classifications be “narrowly tailored” to serve a “compelling” government interest, whereas intermediate scrutiny requires that classifications based on sex be “substantially related” to an “important” government interest. See, e.g., Loving, 388 U.S. at 11–12; Craig, 429 U.S. at 197–98. Rational-basis review merely requires that a law be “rationally related” to a “legitimate” government interest. See, e.g., Cleburne, 473 U.S. at 446–47.
Hollingsworth argues that sexual orientation is not a suspect classification, so the Court should subject Proposition 8 to rational-basis review. See Brief for Petitioners at 27–29. Hollingsworth argues that Proposition 8 only classifies based on a biological distinction between opposite-sex couples, who are capable of having children together, and same-sex couples, who are not. See id. at 28–30 & n.1. Thus, Hollingsworth contends that the Court need not determine what level of scrutiny might apply to laws that treat people differently based on sexual orientation alone. See id.
Perry claims that Proposition 8 creates unequal access to marriage based on sexual orientation. See Brief for Respondents at 28–29. Thus, Perry argues that the law should be subjected to heightened scrutiny because gay men and lesbians share many characteristics with other recognized suspect classes. See id. Perry asserts that gay men and lesbians have faced and continue to face severe discrimination, citing the fact that in twenty-nine states it is legal to fire an employee and deny housing on the basis of sexual orientation. See id. at 29–31. Furthermore, Perry argues that sexual orientation, like race or sex, is an immutable characteristic that has no bearing on an individual’s ability to contribute to society. See id. at 31–33. Finally, Perry highlights the relative political powerlessness of gay men and lesbians, citing their inability to eliminate significant statutory disadvantages at both the state and federal level. See id. at 33–35. Based on these characteristics, Perry argues that gay men and lesbians require heightened scrutiny to protect them from discrimination. See id. at 35.
Can Proposition 8 be sustained under rational-basis review or heightened scrutiny?
Hollingsworth makes no claim that Proposition 8 could withstand heightened scrutiny, instead insisting that rational-basis review is the only appropriate standard. See Brief for Petitioners at 27–29. Perry, on the other hand, asserts that heightened scrutiny is appropriate because sexual orientation is a suspect class, but she has tailored her argument to rational-basis review, acknowledging that if Proposition 8 fails rational-basis review it necessarily fails heightened scrutiny. See Brief for Respondents at 36.
Hollingsworth claims that the government has a legitimate interest in promoting opposite-sex marriage in furtherance of “responsible procreation and childrearing.” See Brief for Petitioners at 31. Drawing on historical, sociological, and philosophical writings, Hollingsworth claims that the purpose of marriage as a civil institution is the encouragement of responsible procreation and childrearing, which is tied to the biological reality that opposite-sex couples—and not same-sex couples—can produce children. See id. at 31–35. Hollingsworth claims that Proposition 8 is rationally related to the government’s interest because it channels potentially procreative conduct into stable, committed relationships. See id. at 36. Hollingsworth highlights several sociological studies showing that children raised in households where the biological parents are married fare better than children raised in single-parent families. See id. at 36–38. Because same-sex couples cannot have children, Hollingsworth argues that the same-sex relationships do not implicate the government’s interest in the same way that opposite-sex relationships do. See id. at 38. Thus, Hollingsworth contends that distinguishing between same- and opposite-sex couples does not violate the Equal Protection Clause because the distinction is relevant—i.e., rationally related—to the government’s interests. In support, Hollingsworth cites Johnson v. Robison, which states that a classification will be upheld when “the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not.” See id. at 40 (quoting Johnson v. Robison, 415 U.S. 361, 383 (1974)). Hollingsworth also contends that the state has an interest in “proceeding with caution before redefining a bedrock social institution,” suggesting that the institution may be deeply upset by the inclusion of same-sex couples. See id. at 48. Furthermore, Hollingsworth stresses the value of the democratic process in determining an issue of such vital importance to the people of California. See id. at 55–61.
Perry disputes that the amendment is at all concerned with the promotion of opposite-sex marriage or procreation, instead arguing that Proposition 8 only serves to exclude same-sex couples from marriage. See Brief for Respondents at 36. Perry points to the fact that in light of the California Supreme Court’s decision in In re Marriage Cases recognizing a state right to marriage for same-sex couples, the only effect of Proposition 8 was to eliminate the ability of same-sex couples to marry in California. See id. at 40. Perry argues that prohibiting same-sex couples from entering into relationships designated as “marriage” is not rationally related to the state’s interest in channeling more opposite-sex couples into marriage. See id. Perry rejects Hollingsworth’s claim that rational-basis review permits excluding groups that the state views as not pertinent to its objective from a state-conferred benefit. See id. Instead, Perry contends that the line petitioners have drawn excluding same-sex couples bears no relation to Hollingsworth’s objective of tying marriage to procreation. See id. at 41. Noting that many opposite-sex couples are unwilling or unable to procreate and thus as unlikely to procreate as same-sex couples, Perry contends that Proposition 8 is so overly underinclusive as to undermine the credulity of Hollingsworth’s purported state interest in procreation. See id. at 41–42. Similarly, Perry argues that by excluding an entire population from marriage, Proposition 8 actually subverts petitioners’ objective of ensuring that children are raised in stable, two-parent households. See id. at 42. Perry also rejects petitioners’ “unsubstantiated fear” that marriage equality may destabilize the institution of marriage, arguing that public concern—even longstanding or historical concern—about equal treatment alone cannot justify a denial of equal treatment. See id. at 47–50. Perry argues that petitioners’ claims regarding the value of the democratic process in this case misconstrue the role of the judiciary in equal-protection cases. See id. at 50–51. According to Perry, the Equal Protection Clause protects insular minorities from exactly this kind of oppression by the majority. See id. Finally, Perry claims that Proposition 8 is unconstitutional because it was motivated by a bare desire to make gay men and lesbians unequal citizens and express moral disapproval of their relationships. See id. at 51–53.
In this case, the United States Supreme Court will consider whether a state can define marriage solely as the union of a man and a woman and whether the proponents of Proposition 8 have standing to bring suit in federal court. The Court must also determine whether Proposition 8 violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment. The Court’s ruling will forever impact the rights of gay men and lesbians, the government’s role in structuring families, and the relationship between the institution of marriage and religion and morality.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
- CBS News, Jennifer De Pinto & Stephanie Condon: Poll: 51 percent support same-sex marriage (Nov. 30, 2012)
- The Inquisitr:President Obama Formally Asks Supreme Court To Strike Down Gay Marriage Ban (Feb. 23, 2013)
- National Catholic Reporter, Richard Wolf: Gay marriage opponents make their case to Supreme Court (Feb. 19, 2013)