The Supreme Court Drops The Ball … Again

The current US Supreme Court (SCOTUS) has handed down some really excellent decisions, such as in the Heller, McDonald, and Citizen’s United cases. They’ve also managed to hand down some real stinkers. The Obamacare case comes immediately to mind.

Now they can add the case of Perry v. Hollingsworth, the case about California’s Proposition 8, to their Hall of Shame.

Rather than deciding the merits of the case, the majority dismissed the case and remanded it back to the Ninth Circuit Court of Appeals, meaning that the Circuit’s finding that the Prop 8 ban was a violation of federal constitutional rights remains in effect. They did this on the basis that, since the state’s officials – the Governor (Schwarzenegger) and Attorney-General (Jerry Brown) –  refused to do their duty to uphold and defend the properly-enacted ballot initiative, the proposition’s proponents who did actually work the case had no “official” position (“standing”) that entitled them to have their case heard in the court.

SCOTUS held that the defenders weren’t “harmed”, another issue that goes to standing. But I believe that SCOTUS did, in fact, err in holding that the Prop’s defenders didn’t have standing. Their group had expended considerable time and financial resources in getting Prop 8 enacted, and to have two government hacks — Schwarzenegger and Brown — refuse to do their jobs and uphold and defend the law — a function of their office — meant that they (the defenders) suffered tangible injury, which gives them standing.

Further, nowhere in the US or California Constitutions are executives endowed with the power to determine the constitutionality of ANY issue. That’s properly the purview of the appropriate courts. Their job is limited to executing and defending properly-enacted laws, which they clearly failed to do. If this case is an example of the “proper” execution of the politicians’ duties, that raises interesting questions: Why do we even bother having a proposition process at all? Or legislatures? Why don’t we just coronate Caesars and have done with the whole charade?

Additionally, as Kennedy pointed out in his excellent dissent, it’s not at all unusual for interested parties to represent such issues when state officials refuse to do so; that the majority was wrong in applying the “Arizonans” case; and that the states have the right to allow other parties to have standing as the states are the bodies that determine such matters under state law and the California Supreme Court had approved the defenders’ standing.

The initiative process in California was enacted in order to give the people a direct voice in government and allow them recourse if arrogant or corrupt politicians failed to address their concerns. By remanding the case because the politicians failed to defend the law, essentially SCOTUS invalidated the entire referendum process, depriving the people of California of any recourse against officials who refuse to carry out the duties of their office.

Now, I do think that the defenders made a strategic error in not trying to pursue a Writ of Mandamus while the issue was still at the state level. Such a Mandamus would have forced Schwarzy and Brown to defend the law, or appoint some other “official” government representative or agency to do so, depriving SCOTUS of their escape hatch.

There’s yet another problem with this ruling, too: Prop 8 is unconstitutional on Federal grounds in California, while identical laws on the books in many other states are unchallenged and therefore still constitutional by default. SCOTUS has allowed a double standard to come into existence, where constitutional rights in California are different from every other place in the country.

In the past when the Federal courts have ruled on same-sex marriage cases they’ve held that such state bans are constitutional. When the cases were appealed to SCOTUS, most notably 1972’s Baker v. Nelson, SCOTUS hasn’t granted cert and has let the Circuit decisions stand.

Through their actions in this case, they’ve allowed two definitions of “constitutionality” to come into existence: in the Ninth Circuit and California, the bans are unconstitutional. In the rest of the country, they’re not. That’s an absurd and untenable condition.

Interestingly, there are a couple of other cases working their way up which don’t have this specious “standing” issue in play, particularly Sevcik v. Sandoval, a Nevada case so it’s also in the Ninth Circuit. So, if the Ninth again holds the ban to be unconstitutional, SCOTUS will have to deal with the issue again, and won’t be able to duck the issue over the specious “standing” issue as the state’s officials are actually fulfilling their duties to defend the case.

So this clearly isn’t over yet. Further, there’s going to have to be some kind of resolution as to the inconsistency of the state of the law in different Circuits as to constitutionality. The Constitution demands “equality”, and right now that’s not the case at all.

Instead, we now find ourselves with the issue of constitutionality in this country completely unresolved. This is an absolutely terrible decision, one grown out of cowardice on the part of SCOTUS to actually face and resolve the issue. I give them a big, fat “F”.

© Brian Baker 2013