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Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
FEATURE: LGBT As to the merits of the issue, Justice Alito asserted that "[t]he Constitution does not guarantee the right to enter into a same-sex marriage," and that a right for same-sex marriage cannot be founded in substantive due process because same-sex marriage is not a "fundamental right[ ] and libert[y] which [is], objectively, 'deeply rooted in this Nation's history and tradition."24 Instead of a justiciable case, Justice Alito felt that the issue presented to the Court was more of a political question and represented an end-run by the plaintiff to force the Court to ordain which school of political thought was the rule of the land.25 Justice Alito concluded that the Fifth Amendment was not violated by the Defense of Marriage Act, and therefore, the majority erred in its opinion. Windsor ruled Section 3 of the Defense of Marriage Act unconstitutional under the Fifth Amendment Due Process Clause despite serious questions as to whether standing was present. The majority concluded that a "case or controversy" did exist and the United States did have Article III standing by virtue of the fact that the lower courts' decisions required that the government issue a refund. As a result, same-sex couples married in a state that recognizes same-sex marriage will be treated as married for purposes of federal law. Though the dissenting justices believe the majority's reliance on federalism prevents the Court from invalidating state-imposed same-sex marriage bans in the future, the dissenters' opinions seem to casually ignore the obvious caveats the majority included in its analysis. In fact, the majority twice notes that states may define what constitutes a marriage within its borders, "subject to constitutional guarantees."26 Therefore, though the dissenting justices all state that the majority's opinion limited the Court's ability to render state definitions of marriage invalid, the majority has neatly left itself a window for future marriage equality cases to pass through, and has preserved the Court's ability to analyze the constitutionality of state-imposed restrictions preventing marriage equality. HOLLINGSWORTH V. PERRY: VOTER-LED PROHIBITIONS OF SAME-SEX MARRIAGE Hollingsworth v. Perry27 was the Supreme Court's opinion related to the constitutionality of Proposition 8. In 2008, the California Supreme Court concluded that limiting the definition of marriage to include only heterosexual couples violated the Equal Protection Clause of the California Constitution.28 Shortly thereafter, California voters passed the ballot initiative known as Proposition 8, which overruled the California Supreme Court's decision and amended California's Constitution to state that "[o]nly marriage between a man and a woman is valid or recognized in California."29 The plaintiffs in Hollingsworth, two samesex couples who were unable to marry as a result of Proposition 8, filed suit in federal court against California's governor, attorney general, and various other state and local officials, and alleged that Proposition 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. All California officials named as defendants in the action refused to defend the law, so the District Court allowed the official proponents of Proposition 8 to intervene to defend the amendment's constitutionality.30 The District Court eventually concluded that Proposition 8 was unconstitutional and enjoined the enforcement of the ban on same-sex marriage. 6 The proponents of Proposition 8 appealed the District Court's ruling B&B; • 1.14 to the Ninth Circuit Court of Appeals, and that appellate court was advised, by certified question to the California Supreme Court, that the proponents of Proposition 8 had authority "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."31 The Ninth Circuit Court of Appeals concluded that Proposition 8 violated the Equal Protection Clause because California removed "a right or benefit from one group but not others" without a legitimate reason for withdrawing that right.32 The proponents of Proposition 8 filed a petition for writ of certiorari, which was granted by the U.S. Supreme Court. In another 5-4 decision, and in what may be one of the oddest combinations of Supreme Court justices to sign such a politically-decisive opinion,33 the Supreme Court concluded that the proponents of Proposition 8 lacked standing to appeal the district court's determination. The majority reasoned that the proponents of Proposition 8 lacked standing because the district court's opinion did not cause any individual or personal injury to the proponents; rather, the proponents' contentions merely represent "generalized grievances" because the district court's determination impacted the proponents "no more directly . . . than it [did] the public at large."34 The Court also concluded that the special role bestowed on the proponents under the California Election Code did not vest any role of enforcement in those individuals. Further, the majority concluded that the California Supreme Court could not vest authority in private individuals to assert the validity of Proposition 8 in an Article III court. While certain public officials may represent the state's interest,35 the majority concluded that same right does not extend to private individuals.36 The majority concluded that "standing in federal court is a question of federal law." Accordingly, the California Supreme Court's determination that the proponents had standing was insufficient to grant standing for federal purposes, thereby preventing the Court from reaching the merits of the dispute. The dissenting justices relied primarily on one important fact in their analysis: the issue of standing before the Court was a question of state law related to "how California defines and elaborates the status and authority of an initiative's proponents who seek to intervene in court to defend the initiative after its adoption by the elec-