Hollingsworth v. Perry

570 U.S. _

Case Year: 2013

Case Ruling: 5-4, Vacated and Remanded

Opinion Justice: Roberts

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Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Ginsburg, Kagan, Scalia


1st Concurring Opinion



1st Dissenting Opinion

Author: Kennedy

Joiner(s): Alito, Sotomayor, Thomas

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



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In 2008, the California Supreme Court held that limiting marriage to opposite-sex couples violated the equal protection clause of the state’s Constitution. In response, California voters passed a ballot initiative, known as Proposition 8 (or just Prop 8), which amended the state’s Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.”

Kris Perry and Sandy Stier were a same-sex couple that wanted to marry in California. They and another same-sex couple filed suit in federal court, challenging Prop 8 under the Due Process and Equal Protection Clauses of the U.S. Constitution’s Fourteenth Amendment. Their complaint named as defendants California’s governor, attorney general, and other officials responsible for enforcing California’s marriage laws. Because the officials refused to defend the law, the district court allowed the initiative’s official “proponents” (Hollingsworth and others) to intervene to defend it. After a bench trial, the district judge declared Prop 8 unconstitutional and permanently enjoined the California officials from enforcing the law.

While the California officials decided not to appeal the district court’s decision, Prop 8’s official proponents did. Before the U.S. Court of Appeals decided the case, the judges certified a question to the California Supreme Court: whether the official proponents of a ballot initiative have authority to assert the State’s interest in defending the constitutionality of the initiative when public officials refuse to do so. The California Supreme Court responded yes:

In 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.

Relying on the state supreme court’s response, the court of appeals concluded that the official proponents had standing under federal law to defend the constitutionality of Prop 8. States have the “prerogative, as independent sovereigns, to decide for themselves who may assert their interests,” the court concluded.

On the merits of the suit, the court affirmed the district. It held Prop 8 unconstitutional under the Supreme Court’s decision in Romer v. Evans (1996). The proponents, but again not state officials, asked the U.S. Supreme Court to reverse the circuit court’s decision.



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.” 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 (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 . . .

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife (1992). In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.” . . .

Respondents initiated this case in the District Court against the California officials responsible for enforcing Proposition 8. The parties do not contest that respondents had Article III standing to do so. Each couple expressed a desire to marry and obtain “official sanction” from the State, which was unavailable to them given the declaration in Proposition 8 that “marriage” in California is solely between a man and a woman.

After the District Court declared Proposition 8 unconstitutional and enjoined the state officials named as defendants from enforcing it, however, the inquiry under Article III changed. Respondents no longer had any injury to redress—they had won—and the state officials chose not to appeal.

The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything. To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” He must possess a “direct stake in the outcome” of the case. Here, however, petitioners had no “direct stake” in the outcome of their appeal. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.

We have repeatedly held that such a “generalized grievance,” no matter how sincere, is insufficient to confer standing. A litigant “raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.” Defenders of Wildlife.

Petitioners argue that the California Constitution and its election laws give them a “ ‘unique,’ ‘special,’ and ‘distinct’ role in the initiative process—one ‘involving both authority and responsibilities that differ from other supporters of the measure.’ ” True enough—but only when it comes to the process of enacting the law. Upon submitting the proposed initiative to the attorney general, petitioners became the official “proponents” of Proposition 8. As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets.

But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California.

Article III standing “is not to be placed in the hands of ‘concerned bystanders,’ who will use it simply as a ‘vehicle for the vindication of value interests.’ ” No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” that is not a “particularized” interest sufficient to create a case or controversy under Article III. Defenders of Wildlife. . . .

Petitioners contend that . . . they are “authorized under California law to appear and assert the state’s interest” in the validity of Proposition 8. . . . As petitioners put it, they “need no more show a personal injury, separate from the State’s indisputable interest in the validity of its law, than would California’s Attorney General or did the legislative leaders held to have standing in Karcher v. May (1987).

In Karcher, we held that two New Jersey state legislators—Speaker of the General Assembly Alan Karcher and President of the Senate Carmen Orechio—could intervene in a suit against the State to defend the constitutionality of a New Jersey law, after the New Jersey attorney general had declined to do so. “Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals,” we held that the Speaker and the President, in their official capacities, could vindicate that interest in federal court on the legislature’s behalf.

Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. That agent is typically the State’s attorney general. But state law may provide for other officials to speak for the State in federal court, as New Jersey law did for the State’s presiding legislative officers in Karcher.

What is significant about Karcher is what happened after the Court of Appeals decision in that case. Karcher and Orechio lost their positions as Speaker and President, but nevertheless sought to appeal to this Court. We held that they could not do so. We explained that while they were able to participate in the lawsuit in their official capacities as presiding officers of the incumbent legislature, “since they no longer hold those offices, they lack authority to pursue this appeal.”

The point of Karcher is not that a State could authorize private parties to represent its interests; Karcher and Orechio were permitted to proceed only because they were state officers, acting in an official capacity. As soon as they lost that capacity, they lost standing. Petitioners here hold no office and have always participated in this litigation solely as private parties . . . .

[P]etitioners are plainly not agents of the State—“formal” or otherwise . . . .

[The] most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” 1 Restatement (Third) of Agency (2005). Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals&mdashlor elected at all. No provision provides for their removal. . . .

“If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” But petitioners owe nothing of the sort to the people of California. Unlike California’s elected officials, they have taken no oath of office. . . . They are free to pursue a purely ideological commitment to the law’s constitutionality without the need to take cognizance of resource constraints, changes in public opinion, or potential ramifications for other state priorities . . . .

Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such.

The dissent eloquently recounts the California Supreme Court’s reasons for deciding that state law authorizes petitioners to defend Proposition 8. We do not “disrespect[ ]” or “disparage[ ]” those reasons. Nor do we question California’s sovereign right to maintain an initiative process, or the right of initiative proponents to defend their initiatives in California courts, where Article III does not apply. But as the dissent acknowledges, 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 . . . .

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.

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.

It is so ordered.


The reasons the Supreme Court of California gave for its holding [that the official proponents of Prop 8 were authorized to appeal] have special relevance in the context of determining whether proponents have the authority to seek a federal-court remedy for the State’s concrete, substantial, and continuing injury. As a class, official proponents are a small, identifiable group. Because many of their decisions must be unanimous, they are necessarily few in number. Their identities are public. Their commitment is substantial. They know and understand the purpose and operation of the proposed law, an important requisite in defending initiatives on complex matters such as taxation and insurance. Having gone to great lengths to convince voters to enact an initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy.

Thus, in California, proponents play a “unique role . . . in the initiative process.” . . . Proponents’ authority under state law is not a contrivance. It is not a fictional construct. It is the product of the California Constitution and the California Elections Code. There is no basis for this Court to set aside the California Supreme Court’s determination of state law . . .

The Court concludes that proponents lack sufficient ties to the state government. It notes that they “are not elected,” “answer to no one,” and lack “ ‘a fiduciary obligation’ ” to the State (quoting 1 Restatement (Third) of Agency). But what the Court deems deficiencies in the proponents’ connection to the State government, the State Supreme Court saw as essential qualifications to defend the initiative system. The very object of the initiative system is to establish a lawmaking process that does not depend upon state officials. In California, the popular initiative is necessary to implement “the theory that all power of government ultimately resides in the people.” The right to adopt initiatives has been described by the California courts as “one of the most precious rights of [the State’s] democratic process.” That historic role for the initiative system “grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process.” The initiative’s “primary purpose,” then, “was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt.”

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. As a consequence, California finds it necessary to vest the responsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so.


Contrary to the Court’s suggestion, this Court’s precedents do not indicate that a formal agency relationship is necessary. In Karcher v. May (1987), the Speaker of the New Jersey Assembly (Karcher) and President of the New Jersey Senate (Orechio) intervened in support of a school moment-of-silence law that the State’s Governor and attorney general declined to defend in court. In considering the question of standing, the Court looked to New Jersey law to determine whether Karcher and Orechio “had authority under state law to represent the State’s interest in both the District Court and Court of Appeals.” The Court concluded that they did. Because the “New Jersey Supreme Court ha[d] granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment,” the Karcher Court held that standing had been proper in the District Court and Court of Appeals. By the time the case arrived in this Court, Karcher and Orechio had lost their presiding legislative offices, without which they lacked the authority to represent the State under New Jersey law. This, the Court held, deprived them of standing. Here, by contrast, proponents’ authority under California law is not contingent on officeholder status, so their standing is unaffected by the fact that they “hold no office” in California’s Government. . . .

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, here the Court refuses to allow a State’s authorized representatives to defend the outcome of a democratic election . . .

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century . . . In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectful dissent.