The issue with proposition 8 is that California lost, and then chose not to appeal. Lawyers for the group that passed proposition 8 then stepped in and took the case. Their argument basically was that if they were not allowed to do this, then any proposition passed by Californians that the government did not like the government could unpass by posting a lackluster defense and then not appealing it.
The 9th circuit did not know whether they should grant standing. They remanded it to the California Supreme Court to decide that. The California Supreme Court said that under California law they did have standing. The 9th heard it. The Supreme Court has now disagreed.
But I agree with that argument from the supporters of proposition 8. California gives voters the power to pass proposition that the state does not like. The state has now been handed a legal tool which undermines that in federal court. (I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)
That's neither procedurally nor factually correct; they certified a question to the California Supreme Court about the authority of petitioners under State law to defend the proposition in court; this was not a remand, and although the Ninth Circuit based its finding of standing on the result, the question to the California Supreme Court was not directly on standing (which is a federal question, not a state law question, and thus wouldn't have been an appropriate question for certification to the state court.)
> The Supreme Court has now disagreed.
The Supreme Court, to be clear, disagreed with the Ninth Circuit's conclusion on standing, not the California Supreme Court's answer on the question of state law authority. In fact, they based their disagreement in part on the California Supreme Court answer, and on how that answer clearly indicated that the state law authority did not have the requisite elements of an agency relationship, which would be necessary for the petitioners to have the standing on the basis that they were representatives of the State interest rather than on the basis of particularized harms they themselves faced as the result of an adverse decision.
> California gives voters the power to pass proposition that the state does not like.
It gives the voters -- through the reserved legislative powers state held by the electorate -- the power to pass laws (including Constitutional amendments) that the elected representatives of the state don't like.
It also gives the voters the power to voters to elect representatives -- and to remove them if they don't like their actions.
> I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)
State courts -- and federal courts -- will look to the state Supreme Court on the state law question, and would look to the US Supreme Court on the federal law question (except that the question of Article III standing is, unlike many other federal law questions, almost never relevant to a state court except perhaps as persuasive authority on the application of similar state standing rules when there is no controlling state precedent available.)
I'm a non-lawyer going off of my memory of what was said in the media, and clearly got some important details wrong.
> California lost, by posting a lackluster defense.
This is a case of Constitutional law review, where legal precedent must be presented to the Court (in other words there will be little if any dispute of material facts that will be decided by a fact finder, simply a ruling on law), it is not as if California could or the other side could withhold legal precedent from the Court (even if it is adverse to their position), in fact the lawyers could be sanctioned for knowingly withholding case law that is on point. Further, the Court performs its own research, review, and analysis of the existing case law. In my opinion there are far to many safeguards for these types of abuses or throwing of a case.
Opponents of the proposition pick a district court with a judge whose bias is known. The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence. Nobody can be sanctioned for it. And nobody aside from the disinterested state has standing to complain.
The protection of the court is useless if you cannot get your day in court.
Incorrect. California voters, if the issue is important to them, can remove the offending officials. And they don't even have to wait until the next regular election for the particular officers targetted, given California's recall provisions. (And, given that California directly elects executive officers like the Attorney-General separately, rather than them being appointees, it can do so in a reasonably fine-grained manner.)
And, the people that have run statewide proposition campaigns are, by demonstrated experience, fairly uniquely qualified to apply that sanction should it be necessary.
For example, consider hypothetical state propositions limiting when elected officials can solicit donations, or providing for specific penalties to elected officials should they fail to do certain things (eg pass a budget on time). There are many such propositions that could be popular with voters, and would certainly be unpopular with any elected official.
For that class of proposition, the ability to vote in different elected officials does not actually give the public an effective tool to get the state to support the proposition.
And that is moving the goalposts (particularly as to the "indirect" portion), and unsupported (as to the "consistently ineffective".)
The rather special case you assert as an example, whatever merits it might have, clearly doesn't show that it is "consistently" anything.
First you can not "pick" a District Court Judge, cases are assigned to District Court Judges.
>The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence.
The first ruling is the safeguard...Judges can not just rule according to their gut or "bias" they have to follow precedent - they can not ignore case law nor can the attorneys.
Besides, if you think the State is acting so unethically, in basically throwing the case (which again is not really possible in a Federal Court Civil Rights Case), then they will simply take the appeal to blok a private party from doing so, and just lose that case. Then what? Appeal to the SCOTUS? Well as it stands the SCOTUS does not have to take any case, in fact the majority of cases they appealed to them they do not to take, approximately 90% of every case they hear is some death penalty appeal. SCOTUS has a history of passing on very important issues, and could have passed on DOMA if they wanted.
>The protection of the court is useless if you cannot get your day in court.
They had there day in Court and lost, they decided not to appeal, no one can force a party to appeal. It is not for private parties to assume they could have done better than the State and interject themselves in the State's place and appeal. That opens a floodgate of real issues. Who has standing when multiple parties want to take the case? What if one of those parties is actually adverse to the position?
Furthermore while in theory judges have to follow precedent and case law, in practice there are lots of cases where well-meaning and dedicated judges, presented with the same facts, precedent, and case law, will come to opposite conclusion. Were it otherwise, the Supreme Court would never have dissenting opinions.
Finally, courts do have the right to request that the arguments that they wish to hear about particular points of law be made in front of them. For example in proposition 8, the justices required that the standing argument be made, even though neither side wanted to advance it. In the Affordable Healthcare Act this went further. An attorney, Robert Long, wound up having to be appointed specifically to make the case to the Supreme Court for a point that neither side wished to argue. That point being that the law was a tax, and therefore under the Anti-Injunction Act no lawsuit could be brought about it until after someone had been injured by actually paying it.
That last point matters in this case. The state actively did not want to defend this case in front of the district court. The judge wanted it defended. That is how a different set of attorneys got involved in the first place.
The petitioners were claiming that they should have standing without demonstrating that they had been affected or harmed by the law in question. To rule in favor of the petitioners would have been to throw out the entire principle of 'standing'.
In a hypothetical future case, where the petitioners did have evidence of harm, they would not be prohibited by today's ruling from making a successful petition despite the State's lack of interest in defending the law.
At least that is how it seems to my amateur and cursory review of today's decision.
If it's to be remedied at any level, I'd say it would have to be handled by California. For example, the California Constitution could include a provision that officially appoints the backer of an initiative as a state officer empowered to defend the initiative against challenges.
Given that the 9th court concluded that there was standing, and 4 out of 9 on the Supreme Court did likewise, I believe that you are significantly overestimating the difficulty of coming to that conclusion.
It is true that the court as a whole decided against standing existing. But several of the most important judges in the country heard the facts, knew the law, and concluded that standing did exist.
I think there is probably a bit of confirmation bias and media distortion here; plenty of Supreme Court decisions, even on high profile topics, aren't 5-4 or are 5-4 but don't break "conservative 4" + "liberal 4" + Kennedy (e.g., the decision uphold the Affordable Care Act  was 5-4, with Roberts plus the four liberals in the majority, and the four remaining conservatives, including Kennedy, in the minority.) But for the months the case was before the Supreme Court, the media was harping on how it was bound to be 5-4 with Kennedy as the swing vote, so what do you think sticks more in people's minds -- the actual result that was highlighted on the day of the decision and then dropped, or the "everyone knows" that was a focus of attention for months?
And, on the decision letting stand the District Court decision  striking down Prop. 8 in California based on the Prop. 8 supporters lack of standing to appeal the decision, also announced today, the 5-4 decision had Roberts, Scalia, Ginsberg, Breyer, and Kagan in the majority with Kennedy, Thomas, Alito, and Sotomayor in the minority.
 NFIB v. Sebelius, http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
 Hollingworth v. Perry, http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf
It's apparently a 'well-known fact' at this point that Roberts switched his vote at the last minute on the ACA ruling.
Also, some cases are more political than others. Most cases are not 5:4 votes. This is one of those political cases: where you come out depends on whether you view homosexuality as a protected characteristic where people's rights should trump the law as passed by the elected branches, or whether you don't view it as a protected characteristic in which case the default of deference to Congress wins out.
What's interesting are the political cases where the votes don't follow the politics. Look at the vote on Hamdi v Rumsfeld. That was a very political issue at the time, but the votes came out not along party lines at all.
It's also interesting to look at what happens when the parties change their positions relative to the justices they appointed. E.g. Stevens was appointed by a Republican and came out liberal. Thomas was appointed by a very moderate Republican but has come out very conservative. Roberts and Alito were both appointed by GWB, but the former has come out very moderate and the latter quite conservative.
IIRC, if you assess the salience of particular political issues at the time a Justice is appointed, and then look at how they vote on those issues throughout their career, they tend to be pretty consistent with the appointing administrations views on issues that were of high salience when the justice was appointed to the Court, and less consistent the lower the salience of hte issue was at the time the justices are appointed.
This tends to support the idea that justices are much more appointed for the views on high-profile issues than any kind of broad "judicial philosophy".
Since the state declined to defend the law at lower courts, SCOTUS sent it back to that court with directions to dismiss it.
From Amy Howe at the SCOTUS Blog:
"Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case."
And since it was just posted, here is the same type of explanation for the DOMA ruling:
"Here's a Plain English take on United States v. Windsor, the DOMA case: The federal Defense of Marriage Act defines "marriage," for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples."
It was justified on procedural grounds rather than on the merits, but to interpret procedurally-based decisions as "not ideological" and cases decided on the merits as "ideological" is unjustified.
Why would ideology be any less influential in a closely-contested vote on whether a high-profile case procedurally warranted decision; if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
I disagree because justices habitually take the point of view that the principle established is more important than the result achieved. Therefore a variety of ideologies can result in a procedural decision that rules for a side that the justice may or may not personally agree with.
Take this case. Everyone knows that, no matter what happened in the court, California is going to have gay marriage soon. Popular support is running in that direction and it is just a question of time. So whether that happens now or in 3 years is not that important. Thus a justice who does not like gay marriage would not lose much overturning proposition 8.
But what do they gain? The result of their decision is that states which allow voters to pass propositions that the state government does not like, now have an approved legal trick to undo those propositions. Namely try to get sued, then fail to defend the proposition adequately. The court overturns it, and the proposition dies.
If you're a justice who thinks that voter propositions tend to be bad, providing that precedent could be more important to you than the outcome. But since that's a fairly esoteric legal issue, there is little correlation between your feelings about that, and how conservative or liberal you are.
Thus I would not be surprised if one or two of the justices who decided on that procedural ground actually are personally against gay marriage.
But, you say, why wouldn't they avoid that in a high profile case? The answer is because cases become high profile based on what the justices can do. After they act, they can make them unimportant. In this case they could have declared gay marriage legal throughout the entire country on constitutional grounds. (The case was brought in hope of that exact outcome.) Instead a technicality was established, and California got the result that would have happened anyways inside of 5 years.
That's the difference between the front page story on the NY Times and being buried as a couple of sentences in an article about a more important decision that was handed down at the same time.
...if you assume justices are outcome-seeking based on ideology, then there is no reason that procedural justifications for a preferred outcome would be treated any differently than any other justification.
My point is that the connection between the specific outcome of the case, and the outcomes that the justices care about, tends to be weaker for procedural decisions than merits decisions. Therefore we should treat procedural decisions differently from merits decisions. In particular, we should be more cautious about assuming that the underlying ideology matches the obvious headline.
Right, so its a weaker outcome. But if we assume that justices have ideological concerns with policy outcome, there is no reason that the selection to make a procedural decision would be any less a subject to those concerns than the selection to make a merits decision. In fact, the fact that it is a weaker outcome (on the subject addressed by the substance of the case) than a merits decision with similar effect in the immediate case would in some cases be the motivation for pursuing it for an outcome-oriented justice.
I think this is a fairly strained interpretation to try to defend the idea that the court is iron-locked into the "liberal 4" + "conservative 4" + Kennedy divide (casting a different divide as Roberts trying to create an illusion about the court), and it falls down when you have high profile cases like the today's Hollingsworth v. Perry  where the majority is made up of Roberts, Scalia, Ginsberg, Breyer, and Kagan.
Why? So he doesn't have a problem getting "re-elected?" I'm not sure why you think he is worried about the appearance of the court in that way.
Remember, the Court gave itself the powers it has in Marbury vs. Madison, and has at times had folks like Jackson go "let them enforce it". If public opinion turns against the Court, politicians can as well.
One plus of reading both sides is that, with admitted exceptions, the reasoning of the side I disagree with is rarely as stupid as news reports make it sound. A lot of cases that get to the Supreme Court really do have plausible arguments on each side (the really obvious cases get decided lower down).
The biggest tech centers are now all in SSM-supporting states; TX, VA, CO, IL, and NC seem like the most important holdouts.
However, they only struck down the federal part, not the requirement that states recognize each other, so there's still a strong incentive to stay in an SSM-ok state even after marriage in an SSM state.
Texas has a state constitutional amendment forbidding same-sex marriage. Virginia has a constitutional amendment banning both same-sex marriage and civil unions.
The Illinois constitution, sanely, is silent on the issue; every year we get closer to passing a same-sex marriage law; it's a foregone conclusion.
In general it's nearly useless as a constitution, in the sense of a stable document setting forth some general principles. It's been amended 474 times! So it's more like a giant grab-bag of legislation. That's usually bad, but in this case good (if you support SSM), since it's not set in stone.
The bigger issue isn't the structure of it being in the constitution, but the fact that supporters of SSM can't currently get within striking distance of 50% support in the state.
I can't imagine it'll be anything but a good thing for these companies, ultimately.
Any citations to back this up? How did you come to this conclusion?
The sequence of events was: a federal court struck down a California law (passed via Proposition 8), and California, rather than appealing the decision, said "ok" and accepted the ruling. That leaves no remaining live controversy between the State and the federal court system, so nothing for an appeals court to hear (says today's decision).
The decision was 5-4 but not strictly on ideological lines: 2 conservatives and 3 liberals in the majority, 3 conservatives and 1 liberal dissenting.
The assumption that the ideology of members of the court is unidimensional is not justified. "Not strictly according to the popularly perceived ideological factions of the court" is probably more supportable than "not strictly on ideological lines".
“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”
Essentially, when a law targets a certain group then Equal Protection is triggered, this requires the Courts to apply a standard/scrutiny. (See: http://en.wikipedia.org/wiki/Equal_Protection_Clause) Specifically, read up the section on "Tiered scrutiny". In this instance DOMA would require a "legitimate purpose" to target this group (like mid-level scrutiny), it is not that the SCOTUS could not find a legitimate purpose to over turn the law (as I believe you interpret), but that the law was overturned because the legislature did not have a legitimate purpose in creating the law (other than disparage and injure the targeted group, according to the majority opinion).
>Doesn't this sort of judicial activism weaken the separation of powers
The idea of Judicial Activism is a red herring, when any court rules against ones own personal bias/interest. For example, Brown v. Board and Brown v. Board II are typically called judicial activism, but generally only by those who prefer Jim Crow laws. Moreover, this is precisely what the Court was meant to do, review a law and determine whether the legislature enacted a law that violates the Constitution, if this is "judicial activism" then what is SCOTUS for and how would they be a check on the legislature?
"The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law. This raises a most serious question under the Constitution’s Fifth Amendment.
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare con-gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Department of Agriculture v. Moreno, 413 U. S. 528, 534–535 (1973).
The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.
This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."
This is... I don't even know where to begin on how fundamentally wrong this is.
The Supreme Court is established by Article III of the Constitution. It's the end of the line for any legal question that falls under the jurisdiction outlined by Article III, which consists of far, far, far more than "whether a law violates the Constitution and little more".
As for this opinion, the Court explains very clearly the Constitutional issue: DOMA violates the Fifth Amendment. DOMA also has federalism issues, and so in theory a Tenth Amendment problem, but that's not actually necessary in order to strike it down.
I would have assumed that the 14th amendment would have applied.
"Due process of law" is the key here; the government cannot simply say "well, we don't like this person, so we're just going to decree arbitrarily that he doesn't get the same rights as other people".
What it actually means will vary depending on what the government is trying to do; in a criminal case, for example, due process includes all the procedures and safeguards to make sure you get a fair trial before you can be thrown in prison.
Of course, DOMA is more or less literally the federal government saying "we don't like these people, so we're just going to decree arbitrarily that they don't get the same rights as other people".
The Fifth Amendment is the relevant one here because the first batch of amendments -- the Bill of Rights -- are traditionally interpreted as only restraining what the federal government can do; they do not, it is generally believed, constrain the states. The Fourteenth Amendment added equal-protection and due-process requirements for the states, so when a state does something that treats people unequally the Fourteenth Amendment is what the resulting lawsuit usually turns on.
DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. Pp. 13–26.
In other words, DOMA was quite possibly constitutional right up until any state passed laws explicitly granting protections and rights to same-sex marriages. At that point however, it was in direct conflict with state laws and in an area where state laws prevail.
What's really funny is that all these arguments were used buy the "Bible Belt" to KEEP slavery, owning people, on the books for just about as long as we have been discussing gay rights. The Feds could not end slaves as property without an amendment. Various states banned slavery, but the Feds ruled that slaves Owned in one state had to be respected as property rights during travel or if they escaped, even in states where slavery was illegal.
Of course many states treated interracial marriages the same way as gay marriage, well into the 1900's.. Until they were forcibly stopped during the Civil Rights movement. They all know the law and precedent, they don't like it so they want to ignore it.
No, its to resolve all cases and controversies in law and equity arising under the Constitution and laws of the United States (or, at least, that's the role of the federal judiciary; the Supreme Court's role is procedurally limited to a certain subset of those cases and controversies that are either in its original jurisdiction or properly before it on appeal.) See, generally, Article III of the US Constitution.
Also, here, all the Supreme Court did is find the statute in violation of the Constitution, so even under your narrow view of its role its action seems perfectly within what it is assigned to do.
Direct violation of the Fifth Amendment.
 Personally though I think two woman having sex is kinky and quite erotic. Two guys, not so much but to each their own. I'm male by the way.