By refusing to decide Hollingsworth v. Perry directly, the justices have paved the way for a return of same-sex marriage for California couples. The decision, written by Chief Justice John G. Roberts Jr. and joined by Justices Antonin Scalia, Ruth Bader
Ginsburg, Stephen G. Breyer and Elena Kagan, declared that the supporters of Proposition 8 who argued in favor of the California ban on same-sex marriage had no legal standing, and negated the decision of the United
States Court of Appeals for the Ninth Circuit. Justice Anthony M. Kennedy filed a dissenting opinion that was joined by Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor.
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Chief Justice Roberts begins the majority opinion by explaining that the courts can only take on an actual "case or controversy," which does not include every kind of dispute but only those appropriate for the judicial process as opposed to
the political process and the legislative branch. That means, he wrote, that the parties involved must be able to show that they are qualified to sue -- among other issues, they must show that they are being
harmed. Those arguing in favor of the California ban did not have standing, the opinion states, and so the justices and the appeals court below them could not consider the case.
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.
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Justice Roberts earlier compared the activists supporting Proposition 8 to "concerned bystanders," and here writes that their argument that they stood in for the interests of California's state government was not enough for the court to
consider them affected parties or official agents of the state.
Without a judicially cognizable interest of their own, petitioners attempt to invoke that of someone else. They assert that even if
they have no cognizable interest in appealing the District Court’s
judgment, the State of California does, and they may assert that interest on the State’s behalf. It is, however, a “fundamental restriction on our authority” that “[i]n the ordinary
course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”
Powers v. Ohio, 499 U. S. 400,
410 (1991). There are “certain, limited exceptions” to that rule.
Ibid. But even when we have allowed litigants to assert the interests of others, the litigants themselves still “must have suffered an injury in fact, thus giving [them] a sufficiently concrete
interest in the outcome of the issue in dispute.”
Id., at 411 (internal quotation marks omitted).
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In closing, Justice Roberts notes that the California Supreme Court did rule that the supporters of Proposition 8 could stand in for the state government in appealing the case to the Court of Appeals for the Ninth Circuit. He argued, however, that the
California Supreme Court had only interpreted the state's laws, and that only federal courts can decide issues of federal standing.
But as the dissent acknowledges, see
post, at 1, standing in federal court is a question of federal law, not state law. And no matter its reasons, the fact that a State thinks a private party should have
standing to seek relief for a generalized grievance cannot override our settled law to the contrary. The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for
a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers. “Refusing to entertain generalized grievances ensures that . . . courts
exercise power that is judicial in nature,”
Lance, 549 U. S., at 441, and ensures that the Federal Judiciary respects “the proper—and properly limited—role of the courts
in a democratic society,”
DaimlerChrysler Corp. v.
Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted). States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse
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Dissenting Opinion from Justice Kennedy
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In this dissent, Justice Kennedy argues that the California Supreme Court was qualified to assign a third party to defend voter initiatives like Proposition 8, even if the activists did not have a "formal agency relationship" with the state.
What the Supreme Court, he writes, "fails to grasp or accept is the basic premise of the initiative process."
There is much irony in the Court’s approach to justiciability in this case. A prime purpose of justiciability is to ensure vigorous advocacy, yet the Court insists upon litigation conducted by state officials
whose preference is to lose the case. The doctrine is meant to ensure that courts are responsible and constrained in their power, but the Court’s opinion today means that a single district court can
make a decision with far-reaching effects that cannot be reviewed. And rather than honor the principle that justiciability exists to allow disputes of public policy to be resolved by the political process
rather than the courts, see, e.g.,
Allen v. Wright, 468 U. S. 737, 750–752 (1984), here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic
election. The Court’s opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case. The California Supreme Court,
not this Court, expresses concern for vigorous representation; the California Supreme Court, not this Court, recognizes the necessity to avoid conflicts of interest; the California Supreme Court, not this
Court, comprehends the real interest at stake in this litigation and identifies the most proper party to defend that interest. The California Supreme Court’s opinion reflects a better understanding
of the dynamics and principles of Article III than does this Court’s opinion.
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