HOLLINGSWORTH v. PERRY
In 2000, the citizens of California passed Proposition 22, which affirmed a legal understanding that marriage was a union between one man and one woman. In 2008, the California Supreme Court held that the California Constitution required the term “marriage” to include the union of same-sex couples and invalidated Proposition 22. Later in 2008, California citizens passed Proposition 8, which amended the California Constitution to provide that “only marriage between a man and a woman is valid or recognized by California.”
The respondents, a gay couple and a lesbian couple, sued the state officials responsible for the enforcement of California’s marriage laws and claimed that Proposition 8 violated their Fourteenth Amendment right to equal protection of the law. When the state officials originally named in the suit informed the district court that they could not defend Proposition 8, the petitioners, official proponents of the measure, intervened to defend it. The district court held that Proposition 8 violated the Constitution, and the U.S. Court of Appeals for the Ninth Circuit affirmed.
Do the petitioners have standing under Article III of the Constitution to argue this case?
Does the Equal Protection Clause of the Fourteenth Amendment prohibit the state of California from defining marriage as the union of one man and one woman?
Legal provision: Article III
No, the petitioners do not have standing. The Court did not reach the question on the merits of the case. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4 majority. The Supreme Court held that federal courts only have the authority to decide cases in which there is an “actual controversy,” which means that the complaining party must have suffered a “concrete and particularized injury” that can be redressed through court action. In this case, because the petitioners had only a generalized grievance in the form of a desire to defend Proposition 8, they did not have standing under Article III. The Court also held that the petitioners could not invoke the standing of the state to appeal because a litigant must assert his/her own rights and cannot claim relief through the intervention of a third party. Because the petitioners did not have standing to appeal to the U.S. Court of Appeals for the Ninth Circuit, that court did not have jurisdiction to reach a decision on the case.
Justice Anthony M. Kennedy wrote a dissent in which he argued that the Supreme Court should defer to states’ rights in defining what parties may have standing. Because California law allows a third party to assert the state’s interest when state officials decline to do so, the California Supreme Court’s decision regarding the petitioners’ standing is binding. He also argued that the majority’s decision does not take into account the particularities of California’s initiative system and the dynamics that may lead the state to allow proponents of an initiative to stand in for the state. Article III does not interfere with a state’s rights to allow such proponents to support an initiative in court. Justice Clarence Thomas, Justice Samuel A. Alito, Jr., and Justice Sonia Sotomayor joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
DENNIS HOLLINGSWORTH, et al., PETITIONERS v. KRISTIN M. PERRY et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 26, 2013]
Chief Justice Roberts delivered the opinion of the Court.
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.” Pet. for Cert. i. 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, 392 U. S. 83, 95 (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.I
In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution. In re Marriage Cases, 43 Cal. 4th 757, 183 P. 3d 384. Later that year, California voters passed the ballot initiative at the center of this dispute, known as Proposition 8. That proposition amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const., Art. I, §7.5. Shortly thereafter, the California Supreme Court rejected a procedural challenge to the amendment, and held that the Proposition was properly enacted under California law. Strauss v. Horton, 46 Cal. 4th 364, 474–475, 207 P. 3d 48, 122 (2009).
According to the California Supreme Court, Proposition 8 created a “narrow and limited exception” to the state constitutional rights otherwise guaranteed to same-sex couples. Id., at 388, 207 P. 3d, at 61. Under California law, same-sex couples have a right to enter into relationships recognized by the State as “domestic partnerships,” which carry “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses.” Cal. Fam. Code Ann. §297.5(a) (West 2004). In In re Marriage Cases, the California Supreme Court concluded that the California Constitution further guarantees same-sex couples “all of the constitutionally based incidents of marriage,” including the right to have that marriage “officially recognized” as such by the State. 43 Cal. 4th, at 829, 183 P. 3d, at 433–434. Proposition 8, the court explained in Strauss, left those rights largely undisturbed, reserving only “the official designation of the term ‘marriage’ for the union of opposite-sex couples as a matter of state constitutional law.” 46 Cal. 4th, at 388, 207 P. 3d, at 61.
Respondents, two same-sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution. The complaint named as defendants California’s Governor, attorney general, and various other state and local officials responsible for enforcing California’s marriage laws. Those officials refused to defend the law, although they have continued to enforce it throughout this litigation. The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec. Code Ann. §342 (West 2003)—to intervene to defend it. After a 12-day bench trial, the District Court declared Proposition 8 uncon-stitutional, permanently enjoining the California officials named as defendants from enforcing the law, and “directing the official defendants that all persons under their control or supervision” shall not enforce it. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 1004 (ND Cal. 2010).
Those officials elected not to appeal the District Court order. When petitioners did, the Ninth Circuit asked them to address “why this appeal should not be dismissed for lack of Article III standing.” Perry v. Schwarzenegger, Civ. No. 10–16696 (CA9, Aug. 16, 2010), p. 2. After briefing and argument, the Ninth Circuit certified a question to the California Supreme Court:
“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s valid-ity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” Perry v. Schwarzenegger, 628 F. 3d 1191, 1193 (2011).
The California Supreme Court agreed to decide the certified question, and answered in the affirmative. Without addressing whether the proponents have a particularized interest of their own in an initiative’s validity, the court concluded that “[i]n 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.” Perry v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007 (2011).
Relying on that answer, the Ninth Circuit concluded that petitioners had standing under federal law to defend the constitutionality of Proposition 8. California, it reasoned, “ ‘has standing to defend the constitutionality of its [laws],’ ” and States have the “prerogative, as independent sovereigns, to decide for themselves who may assert their interests.” Perry v. Brown, 671 F. 3d 1052, 1070, 1071 (2012) (quoting Diamond v. Charles, 476 U. S. 54, 62 (1986) ). “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” 671 F. 3d, at 1072.
On the merits, the Ninth Circuit affirmed the District Court. The court held the Proposition unconstitutional under the rationale of our decision in Romer v. Evans, 517 U. S. 620 (1996) . 671 F. 3d, at 1076, 1095. In the Ninth Circuit’s view, Romer stands for the proposition that “the Equal Protection Clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.” 671 F. 3d, at 1083–1084. The Ninth Circuit concluded that “taking away the official designation” of “marriage” from same-sex couples, while continuing to afford those couples all the rights and obligations of marriage, did not further any legitimate interest of the State. Id., at 1095. Proposition 8, in the court’s view, violated the Equal Protection Clause because it served no purpose “but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” Ibid.
We granted certiorari to review that determination, and directed that the parties also brief and argue “Whether petitioners have standing under Article III, §2, of the Constitution in this case.” 568 U. S. ___ (2012).II
Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” §2. 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, 504 U. S. 555 –561 (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.” Diamond, supra, at 62.
The doctrine of standing, we recently explained, “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U. S. ___, ___ (2013) (slip op., at 9). In light of this “overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and effi-ciency.” Raines v. Byrd, 521 U. S. 811, 820 (1997) (footnote omitted).
Most standing cases consider whether a plaintiff has satisfied the requirement when filing suit, but Article III demands that an “actual controversy” persist throughout all stages of litigation. Already, LLC v. Nike, Inc., 568 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation marks omitted). That means that standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U. S. 43, 64 (1997) . We therefore must decide whether petitioners had standing to appeal the District Court’s order.
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. App. 59.
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.” Defenders of Wildlife, supra, at 560, n. 1. He must possess a “direct stake in the outcome” of the case. Arizonans for Official English, supra, at 64 (internal quotation marks omitted). 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, supra, at 573–574; see Lance v. Coffman, 549 U. S. 437, 439 (2007) (per curiam) (“Our refusal to serve as a forum for generalized grievances has a lengthy pedigree.”); Allen v. Wright, 468 U. S. 737, 754 (1984) (“an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court”); Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (“The party who invokes the [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury . . . and not merely that he suffers in some indefinite way in common with people generally.”).
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.’ ” Reply Brief 5 (quoting 52 Cal. 4th, at 1126, 1142, 1160, 265 P. 3d, at 1006, 1017–1018, 1030). 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. Cal. Elec. Code Ann. §342 (West 2003). As such, they were responsible for collecting the signatures required to qualify the measure for the ballot. §§9607–9609. After those signatures were collected, the proponents alone had the right to file the measure with election officials to put it on the ballot. §9032. Petitioners also possessed control over the arguments in favor of the initiative that would appear in California’s ballot pamphlets. §§9064, 9065, 9067, 9069.
But once Proposition 8 was approved by the voters, the measure became “a duly enacted constitutional amendment or statute.” 52 Cal. 4th, at 1147, 265 P. 3d, at 1021. Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. See id., at 1159, 265 P. 3d, at 1029 (petitioners do not “possess any official authority . . . to directly enforce the initiative measure in question”). They therefore have no “personal stake” in defending its enforcement that is distinguishable from the general interest of every citizen of California. Defenders of Wildlife, supra, at 560–561.
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.’ ” Diamond, 476 U. S., at 62. No matter how deeply committed petitioners may be to upholding Proposition 8 or how “zealous [their] advocacy,” post, at 4 (Kennedy, J., dissenting), that is not a “particularized” interest sufficient to create a case or controversy under Article III. Defenders of Wildlife, 504 U. S., at 560, and n. 1; see Arizonans for Official English, 520 U. S., at 65 (“Nor has this Court ever identified ini-tiative proponents as Article-III-qualified defenders of the measures they advocated.”); Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).III A
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 inter-ests 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).
In Diamond v. Charles, for example, we refused to allow Diamond, a pediatrician engaged in private practice in Illinois, to defend the constitutionality of the State’s abortion law. In that case, a group of physicians filed a con-stitutional challenge to the Illinois statute in federal court. The State initially defended the law, and Diamond, a professed “conscientious object[or] to abortions,” in-tervened to defend it alongside the State. 476 U. S., at 57–58.
After the Seventh Circuit affirmed a permanent injunction against enforcing several provisions of the law, the State chose not to pursue an appeal to this Court. But when Diamond did, the state attorney general filed a “ ‘letter of interest,’ ” explaining that the State’s interest in the proceeding was “ ‘essentially co-terminous with the position on the issues set forth by [Diamond].’ ” Id., at 61. That was not enough, we held, to allow the appeal to proceed. As the Court explained, “[e]ven if there were cir-cumstances in which a private party would have standing to defend the constitutionality of a challenged statute, this [was] not one of them,” because Diamond was not able to assert an injury in fact of his own. Id., at 65 (footnote omitted). And without “any judicially cognizable interest,” Diamond could not “maintain the litigation abandoned by the State.” Id., at 71.
For the reasons we have explained, petitioners have likewise not suffered an injury in fact, and therefore would ordinarily have no standing to assert the State’s interests.B
Petitioners contend that this case is different, because the California Supreme Court has determined that they are “authorized under California law to appear and assert the state’s interest” in the validity of Proposition 8. 52 Cal. 4th, at 1127, 265 P. 3d, at 1007. The court below agreed: “All a federal court need determine is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.” 671 F. 3d, at 1072. 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, 484 U. S. 72 (1987) .” Reply Brief 6.
In Karcher, we held that two New Jersey state legis-lators—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. 484 U. S., at 75, 81–82. “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. Id., at 82.
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. Maine v. Taylor, 477 U. S. 131, 137 (1986) . To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. See Poindexter v. Greenhow, 114 U. S. 270, 288 (1885) (“The State is a political corporate body [that] can act only through agents”). 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. See 484 U. S., at 81–82.
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.” Id., at 81.
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.
The cases relied upon by the dissent, see post, at 11–12, provide petitioners no more support. The dissent’s primary authorities, in fact, do not discuss standing at all. See Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787 (1987) ; United States v. Providence Journal Co., 485 U. S. 693 (1988) . And none comes close to establishing that mere authorization to represent a third party’s interests is sufficient to confer Article III standing on private parties with no injury of their own.
The dissent highlights the discretion exercised by special prosecutors appointed by federal courts to pursue contempt charges. See post, at 11 (citing Young, supra, at 807). Such prosecutors do enjoy a degree of independence in carrying out their appointed role, but no one would suppose that they are not subject to the ultimate au-thority of the court that appointed them. See also Prov-idence Journal, supra, at 698–707 (recognizing further control exercised by the Solicitor General over special prosecutors).
The dissent’s remaining cases, which at least consider standing, are readily distinguishable. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 –778 (2000) (justifying qui tam actions based on a partial assignment of the Government’s damages claim and a “well nigh conclusive” tradition of such actions in English and American courts dating back to the 13th century); Whitmore v. Arkansas, 495 U. S. 149 –164 (1989) (justifying “next friend” standing based on a similar history dating back to the 17th century, requiring the next friend to prove a disability of the real party in interest and a “significant relationship” with that party); Gollust v. Mendell, 501 U. S. 115 –125 (1990) (requiring plaintiff in shareholder-derivative suit to maintain a financial stake in the outcome of the litigation, to avoid “serious constitutional doubt whether that plaintiff could demonstrate the standing required by Article III’s case-or-controversy limitation”).C
Both petitioners and respondents seek support from dicta in Arizonans for Official English v. Arizona, 520 U. S. 43 . The plaintiff in Arizonans for Official English filed a constitutional challenge to an Arizona ballot initiative declaring English “ ‘the official language of the State of Arizona.’ ” Id., at 48. After the District Court declared the initiative unconstitutional, Arizona’s Governor announced that she would not pursue an appeal. Instead, the principal sponsor of the ballot initiative—the Arizonans for Official English Committee—sought to defend the measure in the Ninth Circuit. Id., at 55–56, 58. Analogizing the sponsors to the Arizona Legislature, the Ninth Circuit held that the Committee was “qualified to defend [the initiative] on appeal,” and affirmed the District Court. Id., at 58, 61.
Before finding the case mooted by other events, this Court expressed “grave doubts” about the Ninth Circuit’s standing analysis. Id., at 66. We reiterated that “[s]tanding to defend on appeal in the place of an original defendant . . . demands that the litigant possess ‘a direct stake in the outcome.’ ” Id., at 64 (quoting Diamond, 476 U. S., at 62). We recognized that a legislator authorized by state law to represent the State’s interest may satisfy standing requirements, as in Karcher, supra, at 82, but noted that the Arizona committee and its members were “not elected representatives, and we [we]re aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Arizonans for Official English, supra, at 65.
Petitioners argue that, by virtue of the California Supreme Court’s decision, they are authorized to act “ ‘as agents of the people’ of California.” Brief for Petitioners 15 (quoting Arizonans for Official English, supra, at 65). But that Court never described petitioners as “agents of the people,” or of anyone else. Nor did the Ninth Circuit. The Ninth Circuit asked—and the California Supreme Court answered—only whether petitioners had “the authority to assert the State’s interest in the initiative’s validity.” 628 F. 3d, at 1193; 52 Cal. 4th, at 1124, 265 P. 3d, at 1005. All that the California Supreme Court decision stands for is that, so far as California is concerned, petitioners may argue in defense of Proposition 8. This “does not mean that the proponents become de facto public officials”; the authority they enjoy is “simply the authority to participate as parties in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure.” Id., at 1159, 265 P. 3d, at 1029. That interest is by definition a generalized one, and it is precisely because proponents assert such an interest that they lack standing under our precedents.
And petitioners are plainly not agents of the State—“formal” or otherwise, see post, at 7. As an initial matter, petitioners’ newfound claim of agency is inconsistent with their representations to the District Court. When the proponents sought to intervene in this case, they did not purport to be agents of California. They argued instead that “no other party in this case w[ould] adequately rep-resent their interests as official proponents.” Motion to Intervene in No. 09–2292 (ND Cal.), p. 6 (emphasis added). It was their “unique legal status” as official proponents—not an agency relationship with the people of California—that petitioners claimed “endow[ed] them with a significantly protectable interest” in ensuring that the District Court not “undo[ ] all that they ha[d] done in obtaining . . . enactment” of Proposition 8. Id., at 10, 11.
More to the point, 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 §1.01, Comment f (2005) (hereinafter Restatement). 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—or elected at all. See Cal. Const., Art. V, §11. No provision provides for their removal. As one amicus explains, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.” Brief for Walter Dellinger 23.
“If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” 1 Restatement §1.01, Comment e. But petitioners owe nothing of the sort to the people of California. Unlike California’s elected officials, they have taken no oath of office. E.g., Cal. Const., Art. XX, §3 (prescribing the oath for “all public officers and employees, executive, legislative, and judicial”). As the California Supreme Court explained, petitioners are bound simply by “the same ethical constraints that apply to all other parties in a legal proceeding.” 52 Cal. 4th, at 1159, 265 P. 3d, at 1029. 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.
Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award . . . is entirely distinct from the question” before it. Id., at 1161, 265 P. 3d, at 1031. (emphasis added). But it is hornbook law that “a principal has a duty to indem-nify the agent against expenses and other losses incurred by the agent in defending against actions brought by third parties if the agent acted with actual authority in taking the action challenged by the third party’s suit.” 2 Restatement §8.14, Comment d. If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.
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.IV
The dissent eloquently recounts the California Supreme Court’s reasons for deciding that state law authorizes petitioners to defend Proposition 8. See post, at 3–5. We do not “disrespect[ ]” or “disparage[ ]” those reasons. Post, at 12. 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, 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.* * *
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.
SUPREME COURT OF THE UNITED STATES
DENNIS HOLLINGSWORTH, et al., PETITIONERS v. KRISTIN M. PERRY et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 26, 2013]
Justice Kennedy, with whom Justice Thomas, Justice Alito, and Justice Sotomayor join, dissenting.
The Court’s opinion is correct to state, and the Supreme Court of California was careful to acknowledge, that a proponent’s standing to defend an initiative in federal court is a question of federal law. Proper resolution of the justiciability question requires, in this case, a threshold determination of state law. The state-law question is 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 electorate. Those state-law issues have been addressed in a meticulous and unanimous opinion by the Supreme Court of California.
Under California law, a proponent has the authority to appear in court and assert the State’s interest in defending an enacted initiative when the public officials charged with that duty refuse to do so. The State deems such an appearance essential to the integrity of its initiative process. Yet the Court today concludes that this state-defined status and this state-conferred right fall short of meeting federal requirements because the proponents cannot point to a formal delegation of authority that tracks the requirements of the Restatement of Agency. But the State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.
In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court’s view of how a State should make its laws or structure its government. The Court’s reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials—the same officials who would not defend the initiative, an injury the Court now leaves unremedied. The Court’s decision also has implications for the 26 other States that use an initiative or popular referendum system and which, like California, may choose to have initiative proponents stand in for the State when public officials decline to defend an initiative in litigation. See M. Waters, Initiative and Referendum Almanac 12 (2003). In my submission, the Article III requirement for a justiciable case or controversy does not prevent proponents from having their day in court.
These are the premises for this respectful dissent.I
As the Court explains, the State of California sustained a concrete injury, sufficient to satisfy the requirements of Article III, when a United States District Court nullified a portion of its State Constitution. See ante, at 11 (citing Maine v. Taylor, 477 U. S. 131, 137 (1986) ). To determine whether justiciability continues in appellate proceedings after the State Executive acquiesced in the District Court’s adverse judgment, it is necessary to ascertain what persons, if any, have “authority under state law to represent the State’s interests” in federal court. Karcher v. May, 484 U. S. 72, 82 (1987) ; see also Arizonans for Official English v. Arizona, 520 U. S. 43, 65 (1997) .
As the Court notes, the California Elections Code does not on its face prescribe in express terms the duties or rights of proponents once the initiative becomes law. Ante, at 8. If that were the end of the matter, the Court’s analysis would have somewhat more force. But it is not the end of the matter. It is for California, not this Court, to determine whether and to what extent the Elections Code provisions are instructive and relevant in determining the authority of proponents to assert the State’s interest in postenactment judicial proceedings. And it is likewise not for this Court to say that a State must determine the substance and meaning of its laws by statute, or by judicial decision, or by a combination of the two. See Sweezy v. New Hampshire, 354 U. S. 234, 255 (1957) (plurality opinion); Dreyer v. Illinois, 187 U. S. 71, 84 (1902) . That, too, is for the State to decide.
This Court, in determining the substance of state law, is “bound by a state court’s construction of a state statute.” Wisconsin v. Mitchell, 508 U. S. 476, 483 (1993) . And the Supreme Court of California, in response to the certified question submitted to it in this case, has determined that State Elections Code provisions directed to initiative proponents do inform and instruct state law respecting the rights and status of proponents in postelection judicial proceedings. Here, in reliance on these statutes and the California Constitution, the State Supreme Court has held that proponents do have authority “under California law to appear and assert the state’s interest in the initiative’s validity and appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” Perry v. Brown, 52 Cal. 4th 1116, 1127, 265 P. 3d 1002, 1007 (2011).
The reasons the Supreme Court of California gave for its holding 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. See Cal. Elec. Code Ann. §9001(a) (West Cum. Supp. 2013). Because many of their decisions must be unanimous, see §§9001(b)(1), 9002(b), they are necessarily few in number. Their identities are public. §9001(b)(2). Their commitment is substantial. See §§9607–9609 (West Cum. Supp. 2013) (obtaining petition signatures); §9001(c) (monetary fee); §§9065(d), 9067, 9069 (West 2003) (drafting arguments for official ballot pamphlet). 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.” 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. They “have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’s enactment into law.” Ibid.; see also id., at 1160, 265 P. 3d, at 1030 (because of “their special relationship to the initiative measure,” proponents are “the most obvious and logical private individuals to ably and vigorously defend the validity of the challenged measure on behalf of the interests of the voters who adopted the initiative into law”). 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 Supreme Court of California explained that its holding was consistent with recent decisions from other States. Id., at 1161–1165, 265 P. 3d, at 1031–1033. In Sportsmen for I–143 v. Fifteenth Jud. Ct., 2002 MT 18, 308 Mont. 189, 40 P. 3d 400, the Montana Supreme Court unanimously held that because initiative sponsors “may be in the best position to defend their interpretation” of the initiative and had a “direct, substantial, legally protectable interest in” the lawsuit challenging that interpretation, they were “entitled to intervene as a matter of right.” Id., at 194–195, 40 P. 3d, at 403. The Alaska Supreme Court reached a similar unanimous result in Alaskans for a Common Language Inc., v. Kritz, 3 P. 3d 906 (2000). It noted that, except in extraordinary cases, “a sponsor’s direct interest in legislation enacted through the initiative process and the concomitant need to avoid the appearance of [a conflict of interest] will ordinarily preclude courts from denying intervention as of right to a sponsoring group.” Id., at 914.
For these and other reasons, the Supreme Court of California held that the California Elections Code and Article II, §8, of the California Constitution afford proponents “the authority . . . to assert the state’s interest in the validity of the initiative” when State officials decline to do so. 52 Cal. 4th, at 1152, 265 P. 3d, at 1024. The court repeated this unanimous holding more than a half-dozen times and in no uncertain terms. See id., at 1126, 1127, 1139, 1149, 1151, 1152, 1165, 256 P. 3d, at 1006, 1007, 1015, 1022, 1024, 1025, 1033; see also id., at 1169–1170, 265 P. 3d, at 1036–1037 (Kennard, J., concurring). That should suffice to resolve the central issue on which the federal question turns.II A
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. Ante, at 15 (quoting 1 Restatement (Third) of Agency §1.01, Comments e, f (2005)). 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.” 52 Cal. 4th, at 1140, 265 P. 3d, at 1016 (internal quotation marks omitted). 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.” Ibid. (internal quotation marks omitted). 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.” Ibid. 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.” Ibid.
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. See id., at 1160, 265 P. 3d, at 1030; cf. Alaskans for a Common Language, supra, at 914 (noting that proponents must be allowed to defend an enacted initiative in order to avoid the perception, correct or not, “that the interests of [the proponents] were not being defended vigorously by the executive branch”). Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. See 52 Cal. 4th, at 1126–1128, 265 P. 3d, at 1006–1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. K. Miller, Direct Democracy and the Courts 106 (2009) (185 of the 455 initiatives approved in Arizona, California, Colorado, Oregon, and Washington between 1900 and 2008 were challenged in court). 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.
Yet today the Court demands that the State follow the Restatement of Agency. See ante, at 15–16. There are reasons, however, why California might conclude that a conventional agency relationship is inconsistent with the history, design, and purpose of the initiative process. The State may not wish to associate itself with proponents or their views outside of the “extremely narrow and limited” context of this litigation, 52 Cal. 4th, at 1159, 265 P. 3d, at 1029, or to bear the cost of proponents’ legal fees. The State may also wish to avoid the odd conflict of having a formal agent of the State (the initiative’s proponent) arguing in favor of a law’s validity while state officials (e.g., the attorney general) contend in the same proceeding that it should be found invalid.
Furthermore, it is not clear who the principal in an agency relationship would be. It would make little sense if it were the Governor or attorney general, for that would frustrate the initiative system’s purpose of circumventing elected officials who fail or refuse to effect the public will. Id., at 1139–1140, 265 P. 3d, at 1016. If there is to be a principal, then, it must be the people of California, as the ultimate sovereign in the State. See ibid., 265 P. 3d, at 1015–1016 (quoting Cal. Const., Art. II, §1) (“ ‘All political power is inherent in the people’ ”). But the Restatement may offer no workable example of an agent representing a principal composed of nearly 40 million residents of a State. Cf. 1 Restatement (Second) of Agency, p. 2, Scope Note (1957) (noting that the Restatement “does not state the special rules applicable to public officers”); 1 Restatement (First) of Agency, p. 4, Scope Note (1933) (same).
And if the Court’s concern is that the proponents are unaccountable, that fear is neither well founded nor sufficient to overcome the contrary judgment of the State Supreme Court. It must be remembered that both elected officials and initiative proponents receive their authority to speak for the State of California directly from the people. The Court apparently believes that elected officials are acceptable “agents” of the State, see ante, at 11–12, but they are no more subject to ongoing supervision of their principal—i.e., the people of the State—than are initiative proponents. At most, a Governor or attorney general can be recalled or voted out of office in a subsequent election, but proponents, too, can have their authority terminated or their initiative overridden by a subsequent ballot measure. Finally, proponents and their attorneys, like all other litigants and counsel who appear before a federal court, are subject to duties of candor, decorum, and respect for the tribunal and co-parties alike, all of which guard against the possibility that initiative proponents will somehow fall short of the appropriate standards for federal litigation.B
Contrary to the Court’s suggestion, this Court’s precedents do not indicate that a formal agency relationship is necessary. In Karcher v. May, 484 U. S. 72 (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.” Id., at 82. 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. Ibid. 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. Id., at 81. 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. Ante, at 12.
Arizonans for Official English v. Arizona, 520 U. S. 43 (1997) , is consistent with the premises of this dissent, not with the rationale of the Court’s opinion. See ante, at 13–14. There, the Court noted its serious doubts as to the aspiring defenders’ standing because there was “no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” 520 U. S., at 65. The Court did use the word “agents”; but, read in context, it is evident that the Court’s intention was not to demand a formal agency relationship in compliance with the Restatement. Rather, the Court used the term as shorthand for a party whom “state law authorizes” to “represent the State’s interests” in court. Ibid.
Both the Court of Appeals and the Supreme Court of California were mindful of these precedents and sought to comply with them. The state court, noting the importance of Arizonans for Official English, expressed its understanding that “the high court’s doubts as to the official initiative proponents’ standing in that case were based, at least in substantial part, on the fact that the court was not aware of any ‘Arizona law appointing initiative sponsors as agents of the people of Arizona to defend . . . the constitutionality of initiatives made law of the State.’ ” 52 Cal. 4th, at 1136–1137, 265 P. 3d, at 1013–1014 (quoting 520 U. S., at 65). Based on this passage, it concluded that “nothing in [Arizonans for Official English] indicates that if a state’s law does authorize the official proponents of an initiative to assert the state’s interest in the validity of a challenged state initiative when the public officials who ordinarily assert that interest have declined to do so, the proponents would not have standing to assert the state’s interest in the initiative’s validity in a federal lawsuit.” Id., at 1137, 265 P. 3d, at 1014.
The Court of Appeals, too, was mindful of this requirement. Perry v. Brown, 671 F. 3d 1052, 1072–1073 (CA9 2012). Although that panel divided on the proper resolution of the merits of this case, it was unanimous in concluding that proponents satisfy the requirements of Article III. Compare id., at 1070–1075 (majority opinion), with id., at 1096–1097 (N. R. Smith, J., concurring in part and dissenting in part). Its central premise, ignored by the Court today, was that the “State’s highest court [had] held that California law provides precisely what the Arizonans Court found lacking in Arizona law: it confers on the official proponents of an initiative the authority to assert the State’s interests in defending the constitutionality of that initiative, where state officials who would ordinarily assume that responsibility choose not to do so.” Id., at 1072 (majority opinion). The Court of Appeals and the State Supreme Court did not ignore Arizonans for Official English; they were faithful to it.C
The Court’s approach in this case is also in tension with other cases in which the Court has permitted individuals to assert claims on behalf of the government or others. For instance, Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and prosecute potential instances of criminal contempt. Under the Rule, this special prosecutor is not the agent of the appointing judge; indeed, the prosecutor’s “determination of which persons should be targets of the investigation, what methods of investigation should be used, what information will be sought as evidence,” whom to charge, and other “decisions . . . critical to the conduct of a prosecution, are all made outside the supervision of the court.” Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 807 (1987) . Also, just as proponents have been authorized to represent the State of California, “ ‘[p]rivate attorneys appointed to prosecute a criminal contempt action represent the United States,’ ” United States v. Providence Journal Co., 485 U. S. 693, 700 (1988) . They are “appointed solely to pursue the public interest in vindication of the court’s authority,” Young, supra, at 804, an interest that—like California’s interest in the validity of its laws—is “unique to the sovereign,” Providence Journal Co., supra, at 700. And, although the Court dismisses the proponents’ standing claim because initiative proponents “are not elected” and “decide for themselves, with no review, what arguments to make and how to make them” in defense of the enacted initiative, ante, at 15, those same charges could be leveled with equal if not greater force at the special prosecutors just discussed. See Young, supra, at 807.
Similar questions might also arise regarding qui tam actions, see, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 –778 (2000); suits involving “next friends” litigating on behalf of a real party in interest, see, e.g., Whitmore v. Arkansas, 495 U. S. 149 –166 (1990); or shareholder-derivative suits, see, e.g., Gollust v. Mendell, 501 U. S. 115 –126 (1991). There is no more of an agency relationship in any of these settings than in the instant case, yet the Court has nonetheless permitted a party to assert the interests of another. That qui tam actions and “next friend” litigation may have a longer historical pedigree than the initiative process, see ante, at 12–13, is no basis for finding Article III’s standing requirement met in those cases but lacking here. In short, the Court today unsettles its longtime understanding of the basis for jurisdiction in representative-party litigation, leaving the law unclear and the District Court’s judgment, and its accompanying statewide injunction, effectively immune from appellate review.III
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 –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.
Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject. As the California Supreme Court recognized, “the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter.” 52 Cal. 4th, at 1124, 265 P. 3d, at 1005 (emphasis in original). If a federal court must rule on a constitutional point that either confirms or rejects the will of the people expressed in an initiative, that is when it is most necessary, not least necessary, to insist on rules that ensure the most committed and vigorous adversary arguments to inform the rulings of the courts.* * *
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. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) . 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.
ORAL ARGUMENT OF CHARLES J. COOPER ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument this morning in Case 12-144, Hollingsworth v. Perry.
Charles J. Cooper: Thank you, Mr. Chief Justice, and may it please the Court:
New York's highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed--
Chief Justice John G. Roberts: Mr. Cooper, we have jurisdictional and merits issues here.
Maybe it'd be best if you could begin with the standing issue.
Charles J. Cooper: --I'd be happy to, Mr. Chief Justice.
Your Honor, the official proponents of Proposition 8, the initiative, have standing to defend that measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.
Justice Ruth Bader Ginsburg: Have we ever granted standing to proponents of ballot initiatives?
Charles J. Cooper: No, Your Honor, the Court has not done that.
But the Court has never had before it a clear expression from a unanimous State's high court that--
Justice Ruth Bader Ginsburg: Well, this is -- this is -- the concern is certainly, the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it's passed, they have no proprietary interest in it.
It's law for them just as it is for everyone else.
So how are they distinguishable from the California citizenry in general?
Charles J. Cooper: --They're distinguishable, Your Honor, because the Constitution of the State of California and its election code provide, according to the unanimous interpretation of the California Supreme Court, that the official proponents, in addition to the other official responsibilities and authorities that they have in the initiative process, that those official proponents also have the authority and the responsibility to defend the validity of that initiative--
Justice Antonin Scalia: I guess the attorney general of this State doesn't have any proprietary interest either, does he?
Charles J. Cooper: --No, Your Honor, nor did--
Justice Antonin Scalia: But -- but he can defend it, can't he--
Charles J. Cooper: --nor did--
Justice Antonin Scalia: --because the law says he can defend it.
Charles J. Cooper: --That's right, Your Honor.
Nor did the legislative leaders in the Karcher case have--
Justice Elena Kagan: Could the State--
Charles J. Cooper: --any particular enforcement--
Justice Elena Kagan: --could -- could the State assign to any citizen the rights to defend a judgment of this kind?
Charles J. Cooper: --Justice Kagan, that would be a -- a very tough question.
It's -- it's by no means the question before the Court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and -- and carefully detailed--
Justice Elena Kagan: Well, I just -- if you would on the hypothetical: Could a State just assign to anybody the ability to do this?
Charles J. Cooper: --Your Honor, I think it very well might.
It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State--
Chief Justice John G. Roberts: Well, that would be -- I'm sorry, are you finished?
Charles J. Cooper: --Yes, Your Honor.
Chief Justice John G. Roberts: Okay.
That -- that may be true in terms of who they want to represent, but -- but a State can't authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring -- who has standing to bring claims up to each State.
And I don't think we've ever allowed anything like that.
Charles J. Cooper: But, Your Honor, I guess the point I want to make is that there is no question the State has standing, the State itself has standing to represent its own interests in the validity of its own enactments.
And if the State's public officials decline to do that, it is within the State's authority surely, I would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens--
Justice Anthony Kennedy: Well, the Chief -- the Chief Justice and Justice Kagan have given a proper hypothetical to test your theory.
But in this case the proponents, number one, must give their official address, they must pay money, and they must all act in unison under California law.
So these five proponents were required at all times to act in unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen.
Charles J. Cooper: --But of course it is, and I think the key--
Justice Sonia Sotomayor: But can you tell me -- that's a factual background with respect to their right to put the ballot initiative on the ballot, but how does it create an injury to them separate from that of every other taxpayer to have laws enforced?
Charles J. Cooper: --Your Honor, the -- the question before the Court, I would submit, is not the injury to the individual proponents; it's the injury to the State.
The -- the legislators in the Karcher case had no individual particularized injury, and yet this Court recognized they were proper representatives of the State's interests, the State's injury--
Justice Sonia Sotomayor: At least one of the amici have suggested that it seems counterintuitive to think that the State is going to delegate to people who don't have a fiduciary duty to them, that it's going to delegate the responsibility of representing the State to individuals who have their own views.
They proposed the ballot initiative because it was their individual views, not necessarily that of the State.
Charles J. Cooper: --Well--
Justice Sonia Sotomayor: --Justice Scalia proffered the question of the Attorney General.
The Attorney General has no personal interest.
Charles J. Cooper: --True.
Justice Sonia Sotomayor: He has a fiduciary obligation.
Charles J. Cooper: The Attorney General, whether it's a fiduciary obligation or not, is in normal circumstances the representative of the State to defend the validity of the State's enactments when they are challenged in Federal court.
But when that officer doesn't do so, the State surely has every authority and I would submit the responsibility to identify particularly in an initiative -- an initiative context.
Justice Sonia Sotomayor: Why isn't the fiduciary duty requirement before the State can designate a representative important?
Charles J. Cooper: Your Honor, I would submit to you that I don't think there's anything in Article III or in any of this Court's decisions that suggest that a representative of a State must be -- have a fiduciary duty, but I would also suggest--
Justice Sonia Sotomayor: Well, generally you don't need to specify it because generally the people who get to enforce the legislation of the government are people who are in government positions elected by the people.
Charles J. Cooper: --And Your Honor--
Justice Sonia Sotomayor: Here these individuals are not elected by the people or appointed by the people.
Charles J. Cooper: --And the California Supreme Court specifically addressed and rejected that specific argument.
They said it is in the context when the public officials, the elected officials, the appointed officials, have declined, have declined to defend a statute.
A statute that, by the way, excuse me, in this case a constitutional amendment, was brought forward by the initiative process.
The Court said it is essential to the integrity, integrity of the initiative process in that State, which is a precious right of every citizen, the initiative process in that State, to ensure that when public officials -- and after all, the initiative process is designed to control those very public officials, to take issues out of their hands.
And if public officials could effectively veto an initiative by refusing to appeal it, then the initiative process would be invalidated.
Justice Stephen G. Breyer: That's -- historically, I think, 40 States, many States have what was called a public action.
A public action is an action by any citizen primarily to vindicate the interest in seeing that the law is enforced.
Now, that's the kind of action I think that this Court has interpreted the Constitution of the United States, case in controversy, to say that it does not lie in the Federal system.
And of course, if that kind of action is the very kind that does not lie, well, then to say, but they really feel it's important that the law be enforced, they really want to vindicate the process, and these are people of special interests, we found the five citizens who most strongly want to vindicate the interest in the law being enforced and the process for making the law be enforced, well, that won't distinguish it from a public action.
But then you say, but also they are representing the State.
At this point, the Dellinger brief which takes the other side of it is making a strong argument, well, they are really no more than a group of five people who feel really strongly that we should vindicate this public interest, and have good reason for thinking it.
So you have read all these arguments that it's not really the agent and so forth.
What do you want to say about it?
Charles J. Cooper: What I want to say, Your Honor, is according to the California Supreme Court, the California Constitution says in terms that among the responsibilities of official proponents, in addition to the many other responsibilities that they step forward and they assume in the initiative process, among those responsibilities and authorities is to defend that initiative if the public officials which the initiative process is designed to control have refused to do it.
It might as well say it in those terms, Your Honor.
Chief Justice John G. Roberts: Counsel, if you want to proceed to the merits, you should feel free to do so.
Charles J. Cooper: Thank you very much, Your Honor.
My -- my -- excuse me.
As I was saying, the accepted truth -- excuse me.
The accepted truth that -- that the New York high court observed is one that is changing and changing rapidly in this country as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same-sex couples.
The question before this Court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 States.
And it does so only if the Respondents are correct that no rational, thoughtful person of goodwill could possibly disagree with them in good faith on this agonizingly difficult issue.
The issues, the constitutional issues that have been presented to the Court, are not of first impression here.
In Baker v. Nelson, this Court unanimously dismissed for want of a substantial Federal question.
Justice Ruth Bader Ginsburg: Mr. Cooper, Baker v. Nelson was 1971.
The Supreme Court hadn't even decided that gender-based classifications get any kind of heightened scrutiny.
Charles J. Cooper: That is--
Justice Ruth Bader Ginsburg: And the same-sex intimate conduct was considered criminal in many States in 1971, so I don't think we can extract much in Baker v. Nelson.
Charles J. Cooper: --Well, Your Honor, certainly I acknowledge the precedential limitations of a summary dismissal.
But Baker v. Nelson also came fairly fast on the heels of the Loving decision.
And, Your Honor, I simply make the observation that it seems implausible in the extreme, frankly, for nine justices to have -- to have seen no substantial Federal question if it is true, as the Respondents maintain, that the traditional definition of marriage insofar as -- insofar as it does not include same-sex couples, insofar as it is a gender definition is irrational and can only be explained, can only be explained, as a result of anti-gay malice and a bare desire to harm.
Justice Anthony Kennedy: Do you believe this can be treated as a gender-based classification?
Charles J. Cooper: Your Honor, I--
Justice Anthony Kennedy: It's a difficult question that I've been trying to wrestle with it.
Charles J. Cooper: --Yes, Your Honor.
And we do not.
We do not think it is properly viewed as a gender-based classification.
Virtually every appellate court, State and Federal, with one exception, Hawaii, in a superseded opinion, has agreed that it is not a gender-based classification, but I guess it is gender-based in the sense that marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered, it's gendered in that sense.
But we -- we agree that to the extent that the classification impacts, as it clearly does, same-sex couples, that -- that classification can be viewed as being one of sexual orientation rather than--
Justice Sonia Sotomayor: Outside of the -- outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?
Is there any other rational decision-making that the Government could make?
Denying them a job, not granting them benefits of some sort, any other decision?
Charles J. Cooper: --Your Honor, I cannot.
I do not have any -- anything to offer you in that regard.
I think marriage is--
Justice Sonia Sotomayor: All right.
If that -- if that is true, then why aren't they a class?
If they're a class that makes any other discrimination improper, irrational, then why aren't we treating them as a class for this one thing?
Are you saying that the interest of marriage is so much more compelling than any other interest as they could have?
Charles J. Cooper: --No, Your Honor, we certainly are not.
We -- we are saying the interest in marriage and the -- and the State 's interest and society's interest in what we have framed as responsible pro -- procreation is -- is vital, but at bottom, with respect to those interests, our submission is that same-sex couples and opposite-sex couples are simply not similarly situated.
But to come back to your precise question, I think, Justice Sotomayor, you're probing into whether or not sexual orientation ought to be viewed as a quasi-suspect or suspect class, and our position is that it does not qualify under this Court's standard and -- and traditional tests for identifying suspectedness.
The -- the class itself is -- is quite amorphous.
It defies consistent definition as -- as the Plaintiffs' own experts were -- were quite vivid on.
It -- it does not -- it -- it does not qualify as an accident of birth, immutability in that -- in that sense.
Again, the Plaintiffs--
Justice Sonia Sotomayor: So you -- so what -- I don't quite understand it.
If you're not dealing with this as a class question, then why would you say that the Government is not free to discriminate against them?
Charles J. Cooper: --Well, Your Honor, I would think that -- that -- I think it's a -- it's a very different question whether or not the Government can proceed arbitrarily and irrationally with respect to any group of people, regardless of whether or not they qualify under this Court's traditional test for suspectedness.
And -- and the hypothetical I understood you to be offering, I would submit would create -- it would -- unless there's something that -- that is not occurring to me immediately, an arbitrary and capricious distinction among similarly situated individuals, that -- that is not what we think is at the -- at the root of the traditional definition of marriage.
Justice Elena Kagan: Mr. Cooper, could I just understand your argument.
In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation.
Is that basically correct?
Charles J. Cooper: I -- Your Honor, that's the essential thrust of our -- our position, yes.
Justice Elena Kagan: Is -- is there -- so you have sort of a reason for not including same-sex couples.
Is there any reason that you have for excluding them?
In other words, you're saying, well, if we allow same-sex couples to marry, it doesn't serve the State's interest.
But do you go further and say that it harms any State interest?
Charles J. Cooper: Your Honor, we -- we go further in -- in the sense that it is reasonable to be very concerned that redefining marriage to -- as a genderless institution could well lead over time to harms to that institution and to the interests that society has always -- has -- has always used that institution to address.
But, Your Honor, I--
Justice Elena Kagan: Well, could you explain that a little bit to me, just because I did not pick this up in your briefs.
What harm you see happening and when and how and -- what -- what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?
Charles J. Cooper: --Once again, I -- I would reiterate that we don't believe that's the correct legal question before the Court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a--
Justice Anthony Kennedy: Well, then are -- are you conceding the point that there is no harm or denigration to traditional opposite-sex marriage couples?
So you're conceding that.
Charles J. Cooper: --No, Your Honor, no.
I'm not conceding that.
Justice Anthony Kennedy: Well, but, then it -- then it seems to me that you should have to address Justice Kagan's question.
Charles J. Cooper: Thank you, Justice Kennedy.
I have two points to make on them.
The first one is this: The Plaintiffs' expert acknowledged that redefining marriage will have real-world consequences, and that it is impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.
And among those real-world consequences, Your Honor, we would suggest are adverse consequences.
But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there's no way that she or anyone else could possibly know what the long-term implications of -- of profound redefinition of a bedrock social institution would be.
That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.
Justice Antonin Scalia: Mr. Cooper, let me -- let me give you one -- one concrete thing.
I don't know why you don't mention some concrete things.
If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -- there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not.
Some States do not -- do not permit adoption by same-sex couples for that reason.
Justice Ruth Bader Ginsburg: California -- no, California does.
Justice Antonin Scalia: I don't think we know the answer to that.
Do you know the answer to that, whether it -- whether it harms or helps the child?
Charles J. Cooper: No, Your Honor.
And there's -- there's--
Justice Antonin Scalia: But that's a possible deleterious effect, isn't it?
Charles J. Cooper: --Your Honor, it -- it is certainly among the--
Justice Ruth Bader Ginsburg: It wouldn't be in California, Mr. Cooper, because that's not an issue, is it?
In California, you can have same-sex couples adopting a child.
Charles J. Cooper: --That's right, Your Honor.
That is true.
And -- but -- but, Your Honor, here's -- here's the point--
Justice Antonin Scalia: I -- it's true, but irrelevant.
They're arguing for a nationwide rule which applies to States other than California, that every State must allow marriage by same-sex couples.
And so even though States that believe it is harmful -- and I take no position on whether it's harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time.
Charles J. Cooper: --And -- and that, Your Honor, is the point I am trying to make, and it is the Respondents' responsibility to prove, under rational basis review, not only that -- that there clearly will be no harm, but that it's beyond debate that there will be no harm.
Justice Ruth Bader Ginsburg: Mr. Cooper, you are defending -- you are opposing a judgment that applies to California only, not to all of the States.
Charles J. Cooper: That's true, Your Honor.
And if there were a way to cabin the arguments that are being presented to you to California, then the concerns about redefining marriage in California could be confined to California, but they cannot, Your Honor.
Justice Anthony Kennedy: I -- I think there's -- there's substantial -- that there's substance to the point that sociological information is new.
We have five years of information to weigh against 2,000 years of history or more.
On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children.
There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status.
The voice of those children is important in this case, don't you think?
Charles J. Cooper: Your Honor, I certainly would not dispute the importance of that consideration.
That consideration especially in the political process, where this issue is being debated and will continue to be debated, certainly, in California.
It's being debated elsewhere.
But on that -- on that specific question, Your Honor, there simply is no data.
In fact, their expert agreed there is no data, no study, even, that would examine whether or not there is any incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the State of California to recognize, support, and honor same-sex relationships and their families.
There is simply no data at all that would permit one to draw -- draw that conclusion.
I would recall, Justice Kennedy, the point made in Romer, that under a rational basis of review, the provision will be sustained even if it operates to the disadvantage of a group, if it is -- if it otherwise advances rationally a legitimate State interest.
Chief Justice John G. Roberts: Mr. Cooper, we will afford you more time.
You shouldn't worry about losing your rebuttal time, but please continue on.
Charles J. Cooper: Oh--
Justice Stephen G. Breyer: As long as you are on that, then I would like to ask you this: Assume you could distinguish California, suppose we accept your argument or accept Justice Scalia's version of your argument and that distinguishes California.
Now, let's look at California.
What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not?
I mean, there are lots of people who get married who can't have children.
To take a State that does allow adoption and say -- there, what is the justification for saying no gay marriage?
Certainly not the one you said, is it?
Charles J. Cooper: --You're--
Justice Stephen G. Breyer: Am I not clear?
Look, you said that the problem is marriage; that it is an institution that furthers procreation.
Charles J. Cooper: --Yes, Your Honor.
Justice Stephen G. Breyer: And the reason there was adoption, but that doesn't apply to California.
So imagine I wall off California and I'm looking just there, where you say that doesn't apply.
Now, what happens to your argument about the institution of marriage as a tool towards procreation?
Given the fact that, in California, too, couples that aren't gay but can't have children get married all the time.
Charles J. Cooper: Yes, Your Honor.
The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.
Suppose, in turn--
Justice Elena Kagan: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55.
Would that be constitutional?
Charles J. Cooper: --No, Your Honor, it would not be constitutional.
Justice Elena Kagan: Because that's the same State interest, I would think, you know.
If you are over the age of 55, you don't help us serve the Government's interest in regulating procreation through marriage.
So why is that different?
Charles J. Cooper: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile, and the traditional ----
Justice Elena Kagan: No, really, because if the couple -- I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
Charles J. Cooper: Your Honor, society's -- society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself.
The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that--
Justice Elena Kagan: Actually, I'm not even--
Justice Antonin Scalia: I suppose we could have a questionnaire at the marriage desk when people come in to get the marriage -- you know, Are you fertile or are you not fertile?
I suspect this Court would hold that to be an unconstitutional invasion of privacy, don't you think?
Justice Elena Kagan: --Well, I just asked about age.
I didn't ask about anything else.
That's not -- we ask about people's age all the time.
Charles J. Cooper: --Your Honor, and even asking about age, you would have to ask if both parties are infertile.
Justice Antonin Scalia: Strom Thurmond was -- was not the chairman of the Senate committee when Justice Kagan was confirmed.
Charles J. Cooper: --Very few men -- very few men outlive their own fertility.
So I just--
Justice Elena Kagan: A couple where both people are over the age of 55--
Charles J. Cooper: --I--
Justice Elena Kagan: --A couple where both people are over the age of 55.
Charles J. Cooper: --And Your Honor, again, the marital norm which imposes upon that couple the obligation of fidelity--
Justice Sonia Sotomayor: I'm sorry, where is this--
Chief Justice John G. Roberts: I'm sorry, maybe you can finish your answer to Justice Kagan.
Justice Sonia Sotomayor: --I'm sorry.
Charles J. Cooper: --It's designed, Your Honor, to make it less likely that either party to that -- to that marriage will engage in irresponsible procreative conduct outside of that marriage.
Outside of that marriage.
That's the marital -- that's the marital norm.
Society has an interest in seeing a 55-year-old couple that is -- just as it has an interest of seeing any heterosexual couple that intends to engage in a prolonged period of cohabitation to reserve that until they have made a marital commitment, a marital commitment.
So that, should that union produce any offspring, it would be more likely that that child or children will be raised by the mother and father who brought them into the world.
Justice Ruth Bader Ginsburg: Mr. Cooper, we said that somebody who is locked up in prison and who is not going to get out has a right to marry, has a fundamental right to marry, no possibility of procreation.
Charles J. Cooper: Your Honor is referring, I'm sure, to the Turner case, and--
Justice Ruth Bader Ginsburg: Yes.
Charles J. Cooper: --I think that, with due respect, Justice Ginsburg, way over-reads -- way over-reads Turner against Safley.
That was a case in which the prison at issue -- and it was decided in the specific context of a particular prison where there were both female and male inmates, many of them minimum security inmates.
It was dealing with a regulation, Your Honor, that had previously permitted marriage in the case of pregnancy and childbirth.
The Court -- the Court here emphasized that, among the incidents of marriage that are not destroyed by that -- at least that prison context, was the expectation of eventual consummation of the marriage and legitimation of -- of the children.
Chief Justice John G. Roberts: Thank you, Mr. Cooper.
Charles J. Cooper: --Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Mr. Olson?
ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE RESPONDENTS
Theodore B. Olson: Thank you, Mr. Chief Justice, and may it please the Court:
I know that you will want me to spend a moment or two addressing the standing question, but before I do that, I thought that it would be important for this Court to have Proposition 8 put in context, what it does.
It walls-off gays and lesbians from marriage, the most important relation in life, according to this Court, thus stigmatizing a class of Californians based upon their status and labeling their most cherished relationships as second-rate, different, unequal, and not okay.
Chief Justice John G. Roberts: Mr. Olson, I cut off your friend before he could get into the merits.
Theodore B. Olson: I was trying to avoid that, Your Honor.
Chief Justice John G. Roberts: I know ----
Well, I think it's only fair to treat you the same.
Perhaps you could address your jurisdictional argument?
Theodore B. Olson: Yes.
I think that our jurisdictional argument is, as we set forth in the brief, California cannot create Article III standing by designating whoever it wants to defend the State of California in connection with the ballot.
Justice Anthony Kennedy: But this is not whoever it wants.
These are five proponents of -- of the measure, and if we were to accept your argument, it would give the State a one-way ratchet.
The State could go in and make a defense, maybe a half-hearted defense of the statute, and -- and then when the statute is held invalid, simply -- simply leave.
On the other hand, if -- if the State loses, the State can appeal.
So this is a one-way ratchet as it favors the State, and allows governors and other constitutional officers in different States to thwart the initiative process.
Theodore B. Olson: That's the -- that's the way the California Supreme Court saw it with respect to California law.
The governor and the Attorney General of California are elected to act in the best interests of the State of California.
They made a professional judgment given their obligations as officers of the State of California.
The California Supreme Court has said that proponents -- and by the way, only four of the five are here.
Dr. Tam withdrew from the case because of some -- many things he said during the election campaign.
Justice Samuel Alito: Well, Mr. Olson, is it your position that the only people who could defend a ballot, a law that's adopted in California through the ballot initiative are the Attorney General and the governor, so that if the Attorney General and the governor don't like the ballot initiative, it will go undefended?
Is that your position?
Theodore B. Olson: I don't -- I don't think it's quite that limited.
I think one of your colleagues suggested that there could be an officer appointed.
There could be an appointee of the State of California who had responsibility, fiduciary responsibility to the State of California and the citizens of California, to represent the State of California along--
Justice Antonin Scalia: Who -- who would appoint him?
The same governor that didn't want to defend the plebiscite?
Theodore B. Olson: --Well, that happens all the time.
As you recall in the case of -- well, let's not spend too much time on independent counsel provisions, but ----
The governor -- the government of the State of California frequently appoints an attorney where there's a perceived conflict of interest--
Justice Antonin Scalia: I suppose--
Theodore B. Olson: --and that person would have a responsibility for the State and might have responsibility for the attorneys' fees.
Chief Justice John G. Roberts: I suppose there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages, or other people.
We seem to be addressing the case as if the only options are the proponents here or the State.
I'm not sure there aren't other people out there with individual personalized injury that would satisfy Article III.
Theodore B. Olson: There might well be in -- in a different case.
I don't know about this case.
If there was, for example, this was an initiative measure that allocated certain resources of the State of California and the people -- maybe it was a binary system of people got resources and other people didn't get resources, there could be standing.
Someone would show actual injury.
The point, I guess, at the bottom of this is the Supreme Court, this Court, decided in Raines v. Byrd that Congress couldn't specify members of Congress in that context even where the measure depleted or diminished powers of Congress--
Justice Sonia Sotomayor: Mr. Olson, I think the bottom line--
Justice Samuel Alito: The States are not bound by the same separation of powers doctrine that underlies the Federal Constitution.
You couldn't have a Federal initiative, for example.
They're free of all that.
So start from the proposition that a State has standing to defend the constitutionality of a State law un -- beyond dispute.
The question then is, who represents the State?
Now, in a State that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials.
The whole point -- you know this better than I do, because you're from California -- the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.
So if you reject that proposition, what is left is the proposition that the State -- State law can choose some other person, some other group to defend the constitutionality of a State law.
And the California Supreme Court has told us that the Plaintiffs in this case are precisely those people.
So how do you get around that?
Theodore B. Olson: --The only -- that's exactly what the California Supreme Court thought.
The California Supreme Court thought that it could decide that the proponents, whoever they were, and this could be 25 years after the election; it could be one of the proponents, it could be four of the proponents; they could have an interest other than the State because they have no fiduciary responsibility to the State; they may be incurring attorneys' fees on behalf of the State or on behalf of themselves, but they haven't been appointed; they have no official responsibility to the State.
And my only argument, and I know it's a close one, because California thinks that this is the system.
The California Supreme Court thought that this was a system that would be a default system.
I'm suggesting from your decisions with respect to Article III that that takes more than that under--
Justice Sonia Sotomayor: --Mr. Olson, I think that you're not answering the fundamental fear.
And so -- and -- and the amici brief that sets forth this test of fiduciary duty doesn't quite either.
The assumption is that there are not executive officials who want to defend the law.
They don't like it.
No one's going to do that.
So how do you get the law defended in that situation?
Theodore B. Olson: --I don't have an answer to that question unless there's an appointment process either built into the system where it's an officer of California or--
Justice Sonia Sotomayor: So why -- why isn't this viewed as an appointment process, that the in -- the ballot initiators have now become that body?
Theodore B. Olson: --And that's the argument--
Justice Sonia Sotomayor: Is that your argument--
Theodore B. Olson: --That's our -- that's the argument our opponents make.
But it -- but it must be said that it happens all of the time, that Federal officials and State officials decide not to enforce a statute, to enforce a statute in certain ways.
We don't then come in and decide that there's someone else ought to be in court for every particular--
Justice Stephen G. Breyer: What the brief says is, of course, you can appoint people.
It's not just that you appoint them, it's that the State's interest, when it defends a law, is the interest in executing the law of the State.
So all you have to do is give a person that interest.
But when a person has the interest of defending this law, as opposed to defending the law of the State of California, there can be all kinds of conflicts, all kinds of situations.
That's what I got out of the brief.
So give the person that interest.
And that, they say, is what's missing here.
And you'll say -- I mean, that's -- that's here, and you say it's missing here.
Theodore B. Olson: --Yeah, I don't--
Justice Stephen G. Breyer: Why is it missing here?
Theodore B. Olson: --It is -- what is missing here, because you're not an officer of the State of California, you don't have a fiduciary duty to the State of California, you're not bound by the ethical standards of an officer of the State of California to represent the State of California, you could have conflicts of interest.
And as I said, you'd be -- could be incurring enormous legal fees on behalf of the State when the State hasn't decided to go that route.
Chief Justice John G. Roberts: You should feel free to move on to the merits.
Theodore B. Olson: --Thank you, Your Honor.
As I pointed out at the -- at the outset, this is a measure that walls off the institution of marriage, which is not society's right.
It's an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right.
It's a part of the right of privacy, association, liberty, and the pursuit of happiness.
In the cases in which you've described the right to get married under the Constitution, you've described it as marriage, procreation, family, other things like that.
So the procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married.
Chief Justice John G. Roberts: I'm not sure, counsel, that it makes -- I'm not sure that it's right to view this as excluding a particular group.
When the institution of marriage developed historically, people didn't get around and say let's have this institution, but let's keep out homosexuals.
The institution developed to serve purposes that, by their nature, didn't include homosexual couples.
It is -- yes, you can say that it serves some of the other interests where it makes sense to include them, but not all the interests.
And it seems to me, your friend argues on the other side, if you have an institution that pursues additional interests, you don't have to include everybody just because some other aspects of it can be applied to them.
Theodore B. Olson: --Well, there's a couple of answers to that, it seems to me, Mr. Chief Justice.
In this case, that decision to exclude gays and lesbians was made by the State of California.
Chief Justice John G. Roberts: Oh, that's only because Proposition 8 came 140 days after the California Supreme Court issued its decision.
Theodore B. Olson: That's right.
Chief Justice John G. Roberts: And don't you think it's more reasonable to view it as a change by the California Supreme Court of this institution that's been around since time immemorial?
Theodore B. Olson: The California Supreme Court, like this Supreme Court, decides what the law is.
The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married--
Justice Antonin Scalia: --You -- you've led me right into a question I was going to ask.
The California Supreme Court decides what the law is.
That's what we decide, right?
We don't prescribe law for the future.
We -- we decide what the law is.
I'm curious, when -- when did -- when did it become unconstitutional to exclude homosexual couples from marriage?
1868, when the Fourteenth Amendment was adopted?
Sometimes -- some time after Baker, where we said it didn't even raise a substantial Federal question?
When -- when -- when did the law become this?
Theodore B. Olson: --When -- may I answer this in the form of a rhetorical question?
When did it become unconstitutional to prohibit interracial marriages?
When did it become unconstitutional to assign children to separate schools.
Justice Antonin Scalia: It's an easy question, I think, for that one.
At -- at the time that the Equal Protection Clause was adopted.
That's absolutely true.
But don't give me a question to my question.
When do you think it became unconstitutional?
Has it always been unconstitutional?
Theodore B. Olson: When the -- when the California Supreme Court faced the decision, which it had never faced before, is -- does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals -- is it -- is it constitutional--
Justice Antonin Scalia: That -- that's not when it became unconstitutional.
That's when they acted in an unconstitutional matter -- in an unconstitutional matter.
When did it become unconstitutional to prohibit gays from marrying?
Theodore B. Olson: --That -- they did not assign a date to it, Justice Scalia, as you know.
What the court decided was the case that came before it--
Justice Antonin Scalia: I'm not talking about the California Supreme Court.
I'm talking about your argument.
You say it is now unconstitutional.
Theodore B. Olson: --Yes.
Justice Antonin Scalia: Was it always unconstitutional?
Theodore B. Olson: It was constitutional when we -- as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that--
Justice Antonin Scalia: I see.
When did that happen?
When did that happen?
Theodore B. Olson: --There's no specific date in time.
This is an evolutionary cycle.
Justice Antonin Scalia: Well, how am I supposed to know how to decide a case, then--
Theodore B. Olson: Because the case that's before you--
Justice Antonin Scalia: --if you can't give me a date when the Constitution changes?
Theodore B. Olson: --in -- the case that's before you today, California decided -- the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don't want those people to be able to get married.
Chief Justice John G. Roberts: So -- so your case -- your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
Theodore B. Olson: I would make -- I would make the -- also would make the -- that distinguishes it in one respect.
But also -- also -- I would also make the argument, Mr. Chief Justice, that we are -- this -- marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status.
There is no question about that.
Justice Antonin Scalia: So it would be unconstitutional even in States that did not allow civil unions?
Theodore B. Olson: We do, we submit that.
You could write a narrower decision.
Justice Antonin Scalia: Okay.
So I want to know how long it has been unconstitutional in those--
Theodore B. Olson: I don't -- when -- it seems to me, Justice Scalia, that--
Justice Antonin Scalia: --It seems to me you ought to be able to tell me when.
Otherwise, I don't know how to decide the case.
Theodore B. Olson: --I -- I submit you've never required that before.
When you decided that -- that individuals -- after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
Justice Antonin Scalia: 50 years ago, it was okay?
Theodore B. Olson: I -- I can't answer that question, and I don't think this Court has ever phrased the question in that way.
Justice Antonin Scalia: I can't either.
That's the problem.
That's exactly the problem.
Theodore B. Olson: But what I have before you now, the case that's before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that -- that marriage gives them.
It -- it is -- it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.
Justice Anthony Kennedy: That's really -- that's a broad argument that you -- that's in this case if the Court wants to reach it.
The rationale of the Ninth Circuit was much more narrow.
It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any State in the Union, just didn't go far enough, and it's being penalized for not going far enough.
That's a very odd rationale on which to sustain this opinion.
Theodore B. Olson: This Court has always looked into the context.
In, for example, the New Orleans case involving the gambling casinos and advertising, you look at the context of what was permitted, what was not permitted, and does that rationalization for prohibiting in that case the advertising, in this case prohibiting the relationship of marriage, does it make any sense in the context of what exists?
Justice Samuel Alito: Seriously, Mr. Olson, if California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that if California -- if the State -- if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?
Theodore B. Olson: No, I don't think it would come out differently, because of the fundamental arguments we're making with respect to class-based distinctions with respect to a fundamental right.
However, to the extent that my opponent, in the context of California, talks about child-rearing or adoptions or -- or of rights of people to live together and that sort of thing, those arguments can't be made on behalf of California, because California's already made a decision that gay and lesbian individuals are perfectly suitable as parents, they're perfectly suitable to adopt, they're raising 37,000 children in California, and the expert on the other side specifically said and testified that they would be better off when their parents were allowed to get married.
Justice Samuel Alito: I don't think you can have it both ways.
Either this case is the same, this would be the same if this were Utah or Oklahoma, or it's different because it's California and California has provided all these--
Theodore B. Olson: I -- I think that it's not that we're arguing that those are inconsistent.
If the fundamental thing is that denying gays and lesbians the right of marriage, which is fundamental under your decisions, that is unconstitutional, if it is -- if the State comes forth with certain arguments -- Utah might come forth with certain justifications.
California might come forth with others.
But the fact is that California can't make the arguments about adoption or child-rearing or people living together, because they have already made policy decisions.
So that doesn't make them inconsistent.
Chief Justice John G. Roberts: So it's just about -- it's just about the label in this case.
Theodore B. Olson: The label is--
Chief Justice John G. Roberts: Same-sex couples have every other right, it's just about the label.
Theodore B. Olson: --The label “ marriage ” means something.
Even our opponents--
Chief Justice John G. Roberts: Sure.
If you tell -- if you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend.
And that's it seems to me what the -- what supporters of Proposition 8 are saying here.
You're -- all you're interested in is the label and you insist on changing the definition of the label.
Theodore B. Olson: --It is like you were to say you can vote, you can travel, but you may not be a citizen.
There are certain labels in this country that are very, very critical.
You could have said in the Loving case, what -- you can't get married, but you can have an interracial union.
Everyone would know that that was wrong, that the -- marriage has a status, recognition, support, and you -- if you read the test, you know--
Chief Justice John G. Roberts: How do we know -- how do we know that that's the reason, or a necessary part of the reason, that we've recognized marriage as a fundamental right?
That's -- you've emphasized that and you've said, well, it's because of the emotional commitment.
Maybe it is the procreative aspect that makes it a fundamental right.
Theodore B. Olson: --But you have said that marriage is a fundamental right with respect to procreation and at the same level getting married, privacy -- you said that in the Zablocki case, you said that in the Lawrence case, and you said it in other cases, the Skinner case, for example.
Marriage is put on a pro -- equal footing with procreational aspects.
And your -- this Court is the one that has said over and over again that marriage means something to the individual: The privacy, intimacy, and that it is a matter of status and recognition in this--
Justice Sonia Sotomayor: --Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist?
Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
Theodore B. Olson: --Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing.
And if you -- if a State prohibits polygamy, it's prohibiting conduct.
If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.
It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case.
There's a -- there's a different--
Justice Sonia Sotomayor: Is there any way to decide this case in a principled manner that is limited to California only?
Theodore B. Olson: --Yes, the Ninth Circuit did that.
You can decide the standing case that limits it to the decision of the district court here.
You could decide it as the Ninth Circuit did--
Justice Anthony Kennedy: The problem -- the problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff.
Whatever that was.
But you're -- you're doing so in a -- in a case where the opinion is very narrow.
Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -- on standing.
I just wonder if -- if the case was properly granted.
Theodore B. Olson: --Oh, the case was certainly properly granted, Your Honor.
I mean, there was a full trial of all of these issues.
There was a 12-day trial, the judge insisted on evidence on all of these questions.
This -- this is a--
Justice Anthony Kennedy: But that's not the issue the Ninth Circuit decided.
Theodore B. Olson: --The issue -- yes, the Ninth Circuit looked at it and decided because of your decision on the Romer case, this Court's decision on the Romer case, that it could be decided on the narrower issue, but it certainly was an appropriate case to grant.
And those issues that I've been describing are certainly fundamental to the case.
And -- and I don't want to abuse the Court's indulgence, that what I -- you suggested that this is uncharted waters.
It was uncharted waters when this Court, in 1967, in the Loving decision said that interracial -- prohibitions on interracial marriages, which still existed in 16 States, were unconstitutional.
Justice Anthony Kennedy: It was hundreds of years old in the common law countries.
This was new to the United States.
Theodore B. Olson: And -- and what we have here--
Justice Anthony Kennedy: So -- so that's not accurate.
Theodore B. Olson: --I -- I respectfully submit that we've under -- we've learned to understand more about sexual orientation and what it means to individuals.
I guess the -- the language that Justice Ginsburg used at the closing of the VMI case is an important thing, it resonates with me,
"A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded. "
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF DONALD B. VERRILLI, JR., FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
Proposition 8 denies gay and lesbian persons the equal protection of the laws--
Chief Justice John G. Roberts: You don't think you're going to get away with not starting with the jurisdictional question, do you?
Donald B. Verrilli Jr: --As an amicus, I thought I might actually, Your Honor.
And -- and, of course, we didn't take a position on standing.
We didn't -- we didn't brief it, we don't have a formal position on standing.
But I will offer this observation based on the discussion today and the briefing.
We do think that while it's certainly not free of doubt, that the better argument is that there is not Article III standing here because -- I don't want to go beyond just summarizing our position, but -- because we don't have a formal position.
But we do think that with respect to standing, that at this point with the initiative process over, that Petitioners really have what is more in the nature of a generalized grievance and because they're not an agent of the State of California or don't have any other official tie to the State that would -- would result in any official control of their litigation, that the better conclusion is that there's not Article III standing here.
Justice Samuel Alito: Well, tomorrow you're going to be making a standing argument that some parties think is rather tenuous, but today, you're -- you're very strong for Article III standing?
Donald B. Verrilli Jr: Well, we said this was a -- we said this was a close question, and -- and our interests are, Justice Alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with the Court tomorrow.
With respect to the merits, two fundamental points lead to the conclusion that there's an equal protection violation here.
First, every warning flag that warrants exacting scrutiny is present in this case.
And Petitioners' defense of Proposition 8 requires the Court to ignore those warning flags and instead apply highly deferential Lee Optical rational basis review as though Proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law.
Justice Ruth Bader Ginsburg: General Verrilli, I could understand your argument if you were talking about the entire United States, but you -- your brief says it's only eight or nine States, the States that permit civil unions, and that's -- brings up a question that was asked before.
So a State that has made considerable progress has to go all the way, but at least the Government's position is, if it has done -- the State has done absolutely nothing at all, then it's -- it can do -- do as it will.
Donald B. Verrilli Jr: That gets to my second point, Your Honor, which is that I do think the problem here with the arguments that Petitioners are advancing is that California's own laws do cut the legs out from under all of the justifications that Petitioners have offered in defense of Proposition 8, and I understand Your Honor's point and the point that Justice Kennedy raised earlier, but I do think this Court's equal protection jurisprudence requires the Court to evaluate the interests that the State puts forward, not in a vacuum, but in the context of the actual substance of California law.
And here, with respect to California law, gay and lesbian couples do have the legal rights and benefits of marriage, full equality and adoption, full access to assistive reproduction, and therefore, the argument about the State's interests that -- that Petitioners advance have to be tested against that reality, and -- and they just don't measure up.
None of the--
Justice Stephen G. Breyer: Well, the argument--
Justice Samuel Alito: None of the--
Chief Justice John G. Roberts: Justice Breyer.
Justice Stephen G. Breyer: --What is the one -- look, a State that does nothing for gay couples hurts them much more than a State that does something.
And, of course, it's true that it does hurt their argument that they do quite a lot, but which are their good arguments, in your opinion?
I mean, take a State that really does nothing whatsoever.
They have no benefits, no nothing, no nothing.
And moreover, if -- if you're right, even in California, if they have -- if they're right or, you know, if a pact is enough, they won't get Federal benefits, those that are tied to marriage, because they're not married.
So -- so a State that does nothing hurts them much more, and yet your brief seems to say it's more likely to be justified under the Constitution.
I'd like to know with some specificity how that could be.
Donald B. Verrilli Jr: --Well, because you have to measure the -- under the standard of equal protection scrutiny that we think this Court's cases require.
Justice Stephen G. Breyer: I know the principle, but I'm saying which are their good arguments, in your opinion, that would be good enough to overcome for the State that does nothing, but not good enough to overcome California where they do a lot?
Donald B. Verrilli Jr: Well, we -- what we're -- what we're saying about that is that we're not prepared to close the door to an argument in another State where the State's interests haven't cut the legs out from under the arguments.
And I think -- I suppose the caution rationale that Mr. Cooper identified with respect to the effects on children, if it came up in a different case with a different record, after all here, this case was litigated by Petitioners on the theory that rational basis applied and they didn't need to show anything, and so they didn't try to show anything.
Our view is that heightened scrutiny should apply, and so I don't want to -- I don't want to kid about this, we understand, that would be a very heavy burden for a State to meet.
All we're suggesting is that in a situation in which the -- the State interests aren't cut out from under it, as they -- as they are here, that that issue ought to remain open for a future case.
And I -- and I think the caution rationale would be the one place where we might leave it open.
Because you can't leave it open in this case.
Justice Sonia Sotomayor: General, there is an irony in that, which is the States that do more have less rights.
Donald B. Verrilli Jr: Well -- well, I understand that, Your Honor, but I do think that you have to think about the claim of right on the other side of the equation here.
And in this situation, California -- the argument here that -- that gay and lesbian couples can be denied access to marriage on the ground of an interest in responsible procreation and child rearing just can't stand up given that the parents have full equality, the gay and lesbian parents have full equality apart from--
Justice Samuel Alito: --You want us to assess the effects of same-sex marriage, the potential effects on -- of same-sex marriage, the potential -- the effects of Proposition 8.
But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the -- the concept of -- of same-sex marriage.
The one thing that the parties in this case seem to agree on is that marriage is very important.
It's thought to be a fundamental building block of society and its preservation essential for the preservation of society.
Traditional marriage has been around for thousands of years.
Same-sex marriage is very new.
I think it was first adopted in The Netherlands in 2000.
So there isn't a lot of data about its effect.
And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.
But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?
I mean we -- we are not -- we do not have the ability to see the future.
On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?
Donald B. Verrilli Jr: --I have four points I would like to make to that in response to that, Justice Alito, and I think they are all important.
First, California did not through Proposition 8 do what my friend Mr. Cooper said and push a pause button.
They pushed a delete button.
This is a permanent ban.
It's in the Constitution.
It's supposed to take this issue out from the legislative process.
So that's the first point.
Justice Samuel Alito: Well, just in response to that, of course the Constitution could be amended, and -- and I think I read that the California Constitution has been amended 500 times.
Donald B. Verrilli Jr: --But the--
Justice Samuel Alito: So it's not exactly like the U.S. Constitution.
Donald B. Verrilli Jr: --But it does -- of course not.
But it is -- but the aim of this is to take it out of the normal legislative process.
The second point is that, with respect to concerns that Your Honor has raised, California has been anything but cautious.
It has given equal parenting rights, equal adoption rights.
Those rights are on the books in California now, and so the interest of California is -- that Petitioners are articulating with respect to Proposition 8, has to be measured in that light.
Justice Antonin Scalia: Yeah, but the rest of the country has been cautious.
Donald B. Verrilli Jr: And -- and that's why--
Justice Antonin Scalia: And we're -- and you are asking us to impose this on the whole country, not just California.
Donald B. Verrilli Jr: --No, respectfully Justice Scalia, we are not.
Our position is narrower than that.
Our position -- the position we have taken, is about States, it applies to States that have, like California and perhaps other States, that have granted these rights short of marriage, but--
Chief Justice John G. Roberts: I don't want to -- I want you to get back to Justice Alito's other points, but is it the position of the United States that same-sex marriage is not required throughout the country?
Donald B. Verrilli Jr: --We are not -- we are not taking the position that it is required throughout the country.
We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.
Justice Antonin Scalia: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?
Donald B. Verrilli Jr: I -- I see my red light is on.
Chief Justice John G. Roberts: Well, you can go on.
Donald B. Verrilli Jr: Thank you.
Our position is -- I would just take out a red pen and take the word “ only ” out of that sentence.
When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.
And if I could just get to the third reason, which I do think is quite significant.
The argument here about caution is an argument that, well, we need to wait.
We understand that.
We take it seriously.
But waiting is not a neutral act.
Waiting imposes real costs in the here and now.
It denies to the -- to the parents who want to marry the ability to marry, and it denies to the children, ironically, the very thing that Petitioners focus on is at the heart of the marriage relationship.
Chief Justice John G. Roberts: But you are willing to wait in the rest of the country.
You saying it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.
Donald B. Verrilli Jr: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect--
Chief Justice John G. Roberts: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.
Donald B. Verrilli Jr: --Well, we think--
Chief Justice John G. Roberts: But you can wait in States where they have fewer legal rights.
Donald B. Verrilli Jr: --What i said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make.
But in California you can't make the record to justify the exclusion.
And the fourth point I would make on this, recognizing that these situations are not--
Justice Sonia Sotomayor: How would the record be different elsewhere?
Donald B. Verrilli Jr: --Well, they might try to make a different record about the effects on children.
But there isn't a record to that effect here.
And the fourth point I would make, and I do think this is significant, is that the principal argument in 1967 with respect to Loving and that the Commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait.
And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus.
And so -- so I do think that's quite fundamental.
Chief Justice John G. Roberts: Can I ask you a problem about--
Donald B. Verrilli Jr: Sure.
Chief Justice John G. Roberts: --I -- it seems to me that your position that you are supporting is somewhat internally inconsistent.
We see the argument made that there is no problem with extending marriage to same-sex couples because children raised by same-sex couples are doing just fine and there is no evidence that they are being harmed.
And the other argument is Proposition 8 harms children by not allowing same-sex couples to marriage.
Which is it?
Donald B. Verrilli Jr: Well, I -- I think what Proposition 8 does is deny the long-term stabilizing effect that marriage brings.
That's -- that's the argument for -- for marriage, that--
Chief Justice John G. Roberts: But you also tell me there has been no harm shown to children of same-sex couples.
Donald B. Verrilli Jr: --California -- there are 37,000 children in same-sex families in California now.
Their parents cannot marry and that has effects on them in the here and now.
A stabilizing effect is not there.
When they go to school, they have to, you know -- they don't have parents like everybody else's parents.
That's a real effect, a real cost in the here and now.
Justice Stephen G. Breyer: Well, the real cost right now would be you're asking me to write these words:
"A State that has a pact has to say “ marriage ”. "
but I'm not telling you about States that don't.
Well, I would guess there is a real-world effect there, too.
That States that are considering pacts will all say “ we won't do it ”, or not all, but some would.
And that would have a real effect right now.
And at the moment, I'm thinking it's much more harmful to the gay couple, the latter than the former.
But you won't give me advice as the Government as to how to deal with that.
Donald B. Verrilli Jr: Well, we -- we think that, as I started my argument, Your Honor, that all the warning flags for exacting equal protection scrutiny are present here.
This is a group that has suffered a history of terrible discrimination.
The Petitioners don't deny it.
Petitioners said at the podium today that there is no justification for that discrimination in any realm other than the one posed in this case, and the -- and so when those two factors are present, those are paradigm considerations for the application of heightened scrutiny, and so I don't want to suggest that the States that haven't taken those steps--
Justice Sonia Sotomayor: But they are not the only ones.
Donald B. Verrilli Jr: --that States that haven't taken this step, that they are going to have an easy time meeting heightened scrutiny, which I think has to apply--
Justice Ruth Bader Ginsburg: Suppose one of those States repeals its civil union laws?
Donald B. Verrilli Jr: --It would be a different case.
And all I'm saying is that the door ought to remain open to that case, not that it would be easy for the State to prevail in that case.
Chief Justice John G. Roberts: Thank you, General.
Mr. Cooper, to keep things fair, I think you have 10 minutes.
REBUTTAL ARGUMENT OF CHARLES J. COOPER ON BEHALF OF THE PETITIONERS
Charles J. Cooper: Thank you very much.
Justice Anthony Kennedy: And you might address why you think we should take and decide this case.
Charles J. Cooper: Yes, Your Honor, and that is the one thing on which I wholeheartedly agree with my friend Mr. Olson.
This case was properly -- is now properly before the Court and was properly granted, even if, even if, Your Honor, one could defend the -- the specific judgment below for the Ninth Circuit, a defense that I haven't heard offered to this Court.
Judicial redefinition of marriage even in -- even if it can be limited to California, is well worthy of this Court's attention, particularly, Your Honor, as it come from a single district court judge in a single jurisdiction.
I would also like--
Justice Sonia Sotomayor: I think that begs your -- Mr. Olson doesn't really focus on this.
If the issue is letting the States experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?
Charles J. Cooper: --Because, Your Honor--
Justice Sonia Sotomayor: We let issues perk, and so we let racial segregation perk for 50 years from 1898 to 1954.
Charles J. Cooper: --Your Honor, it is hard to--
Justice Sonia Sotomayor: And now we are only talking about, at most, four years.
Charles J. Cooper: --It is hard to imagine a case that would be better, or more thoroughly, I should say, at least, briefed and argued to this Court.
Justice Antonin Scalia: It's too late for that, too late for that now, isn't it?
I mean, we granted cert.--
I mean, that's essentially asking, you know, why did we grant cert. We should let it percolate for another -- you know, we -- we have crossed that river, I think.
Charles J. Cooper: And in this particular case, to not grant certiorari is to essentially bless a judicial decision that there -- that at least in the State of California, the people have no authority to step back, hit the pause button, and allow the experiments that are taking place in this country to further mature; that in fact, at least in California -- and it's impossible to limit this ruling, Your Honor, even to California, even the Solicitor General's argument, he says, applies to at least eight States.
It's impossible to limit these propositions to any particular jurisdiction, so this Court would be making a very real decision with respect to same-sex marriage if it should simply decide to dismiss the writ as improvidently granted, Justice Kennedy.
And let's just step back and just consider for a moment the Solicitor General's argument.
He is basically submitting to the Court that essentially the one compromise that is not available to the States is the one that the State of California has undertaken; that is, to go as far as the people possibly can in honoring and recognizing the families and the relationships of same-sex couples, while still preserving the existence of traditional marriage as an institution.
That's the one thing that's off the table.
Justice Ruth Bader Ginsburg: I thought he was saying, Mr. Cooper, that it's not before the Court today.
And remember Loving against Virginia was preceded by the McLaughlin case.
So first there was the question of no marriage, and then there was marriage.
So, in that sense I understood the Solicitor General to be telling us that case is not before the Court today.
Charles J. Cooper: Forgive me, Justice Ginsburg.
The case of -- what case isn't before the Court?
Justice Ruth Bader Ginsburg: I think it was McLaughlin against Florida.
Charles J. Cooper: Yes.
Justice Ruth Bader Ginsburg: It was cohabitation of people of different races.
Charles J. Cooper: Certainly.
Justice Ruth Bader Ginsburg: And the Court took that case and waited to reach the merits case.
Charles J. Cooper: It's -- yes, Your Honor.
And well, forgive me, Your Honor.
I'm not sure I'm following the Court's question.
Justice Ruth Bader Ginsburg: I may -- my memory may be wrong, but I think the case was that people of different races were arrested and charged with the crime of interracial cohabitation.
And the Court said that that was invalid.
Charles J. Cooper: Yes.
Justice Ruth Bader Ginsburg: Unlawful.
Charles J. Cooper: Yes.
Thank you, Your Honor.
And, you know, I'm glad that counsel for the Respondents mentioned the Loving case, because what this Court -- what this Court ultimately said was patently obvious, is that the colors of the skin of the spouses is irrelevant to any legitimate purpose, no more so than their hair colors, any legitimate purpose of marriage, that interracial couples and same-race couples are similarly situated in every respect with respect to any legitimate purpose of marriage.
That's what this question really boils down here, whether or not it can be said that for every legitimate purpose of marriage, are opposite-sex couples and same-sex couples indistinguishable, indistinguishable.
And with all due respect to counsel and to the Respondents, that is not a hard question.
If, in fact, it is true, as the people of California believe that it still is true, that the natural procreative capacity of opposite-sex couples continues to pose vitally important benefits and risks to society, and that's why marriage itself is the institution that society has always used to regulate those heterosexual, procreative -- procreative relationships.
Counsel -- the Solicitor General has said that the ban that the proposition erects in California is permanent.
Well, it's -- certainly that is not the view of the Respondents and what we read every day.
This is not an issue that is now at rest in the State of California, regardless -- well, unless this Court essentially puts it to rest.
That democratic debate, which is roiling throughout this country, will definitely be coming back to California.
It is an agonizingly difficult, for many people, political question.
We would submit to you that that question is properly decided by the people themselves.
Thank you, Mr. Chief Justice.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.
Chief Justice John G. Roberts: Finally this term I have the opinion of the Court in case 12-144, Hollingsworth versus Perry.
In 2008, the California Supreme Court decided that limiting the official designation of marriage to opposite sex couples violated the California Constitution.
Later that year, California voters passed the ballot initiative at the center of this dispute known as Proposition 8.
That proposition amended the California Constitution to provide that “only marriage between a man and a woman is valid and recognized in California.”
Respondents, two same sex couples who wish to marry, filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Federal Constitution.
The complaint named as defendants California's Governor and various other state officials responsible for enforcing California's marriage laws.
Those officials refused to defend the law and the District Court allowed petitioners, the official proponents of the ballot initiative, to defend it instead.
After trial, the District Court declared Proposition 8 unconstitutional and prohibited California officials from enforcing it.
Those officials chose not to appeal the court order.
When the initiative proponents did, the United States Court of Appeals for the Ninth Circuit decided it was necessary to direct the question about California law to the California Supreme Court.
There is a procedure for doing that under the federal rules.
The Ninth Circuit asked the California court “whether under California law, the official proponents of a ballot initiative like Proposition 8 possess the authority to defend the constitutionality of initiative when the public officials charged with that duty refuse to do so.
The California Supreme Court answered, “Yes.”
Relying on that answer, the Ninth Circuit found that the proponents could defend the constitutionality of Proposition 8 in federal court.
On the merits, the Ninth Circuit concluded that Proposition 8 was unconstitutional under the Equal Protection Clause of the Federal Constitution and affirmed the District Court order.
We granted certiorari to review that determination.
Before addressing the merits of the question in this case, however, we must assure ourselves that we have authority under the Federal Constitution to do so.
We do not have general authority to answer questions of federal constitutional law that happen to come up from time to time.
Instead we have authority under Article III of the Constitution to resolve particular cases or controversies.
And sometimes, in doing that, it is necessary to decide a question of constitutional law.
That's where our authority comes from.
So, it is very important to make sure that we have before us an actual case or controversy.
As used in the Constitution, those words do not include every sort of dispute, but only those, as we put it in a prior precedent, “historically viewed as capable of resolution through the judicial process.”
This is an essential limit on our power.
It ensures that we act as judges deciding cases and do not engage in general policy making 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 -- what our cases refer to as standing.
To have standing to invoke the power of a federal court, a litigant must prove that he has suffered a concrete and particularized injury that is traceable to the defendant and could be redressed by the federal court.
That requirement must be met by person seeking appellant review just as it must be met by person's appearing in Court for the first time.
The parties in this case do not contest that respondents, the same sex couples, had standing to initiate the case in the District Court against the California officials responsible for enforcing Proposition 8.
After the District Court declared Proposition 8 unconstitutional and prohibited the California officials from enforcing it, however, things changed.
The same sex couples 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 were petitioners, the official proponents of Proposition 8, but the District Court had not ordered them to do or refrain from doing anything.
To have standing, a litigant must possess a direct stake in the outcome of the case.
Here, 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, however, repeatedly held that such a generalize grievance, no matter how sincere, is insufficient to confer standing.
Petitioners argue that they have standing because California law gives them a unique and special role in the initiative process.
That is true enough, but only when it comes to the process of enacting the law.
Once Proposition 8 was approved by the voters, the measure became a duly enacted constitutional amendment.
Petitioners have no role, special or otherwise, in enforcing Proposition 8.
They, therefore, have no personal stake in defending its enforcement that is distinguishable from the general interest of every citizen of California.
No matter how deeply committed petitioners may be to upholding Proposition 8 that is not a particularized interest sufficient to create a case or controversy under Article III.
The proponents further argue that even if they have no recognized interest in appealing the District Court's order, 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 a litigant must assert his or her own legal rights and interests and cannot rest acclaim to relief on the legal rights or interests of third parties.
There are certain limited exceptions to that rule, but even when we have allowed litigants to assert the interest of others, the litigants themselves still must have suffered their own injury giving them a sufficiently concrete interest in the outcome of the issue in dispute.
And as just explained the petitioners have not suffered such an injury and therefore would ordinarily have no standing to assert the state's interest, but petitioners contend that this case is different.
The California Supreme Court after all has determined that they are “authorized under California law to appear and assert the state's interest in the validity of Proposition 8.”
Petitioners argue that by virtue of that decision, they are authorized to act as, as they put it, agents of the people of California.
But the California Supreme Court never described petitioners as agents of the people and petitioners are plainly not in an agency relationship with anyone.
Agency requires more than bare authorization to assert a particular interest.
For one, agency requires some degree of control by a principle, yet the petitioners answer to no one.
Where an agency relationship exists, the agent owes a duty of loyalty to the principal, but the proponents owe nothing to the people of California.
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.
The proponents act for themselves, but their interest is a generalized one in the enforcement of the law and that is not enough to pursue a case in federal court.
In deciding that petitioners do not have standing to defend the constitutionality of Proposition 8, we do not question California's sovereign right to maintain an initiative process or the right of initiative proponents to defend their initiatives in state courts.
But standing in federal court is a question of federal law and the Federal Constitution's requirement that a party invoking the jurisdiction of a federal court seek relief for a personal particularized injury serves vital interest 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, rather than political in nature and ensures that the federal judiciary respects the proper and properly limited role of the courts in a democratic society.
States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal court house.
We were asked in this case to decide whether the Equal Protection Clause prohibits California from defining marriage as the union of a man and a woman, but the proponents who ask that question do not have standing.
Therefore, as we explained in our of our precedents, in light of the “overriding and time honored concern about keeping the judiciary's power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of this important dispute and to settle it.”
We have no authority to consider the question presented in this case and neither did the Ninth Circuit.
The judgment of the Ninth Circuit is vacated and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
Justice Kennedy has filed a dissenting opinion in which justices Thomas, Alito and Sotomayor have joined.