by Max Brantley
Before the Prop. 8 decision was announced, a dissenting opinion by Chief Justice John Roberts in the invalidation of the federal Defense of Marriage Act tipped the court's hand.
A majority held that those appealing invalidation of the gay marriage ban didn't have standing to appeal. That has the effect of making same sex marriage legal in California, but put off the overarching equal rights question on same sex marriage for another case.
Said the scotusblog before the decision was announced:
Page 4 of the Roberts dissent [on DOMA], talking about Prop 8: "We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry." [That is the Prop. 8 case]
To be clear, the Court has not yet released the decision in Prop 8, but there is language in Windsor telegraphing that the Court will dismiss on standing.
... More from Roberts: "The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States . . . may continue to utilize the traditional definition of marriage."
9:30 AM NOTE: It will be a few minutes before this is confirmed. One other pending case, decided by Scalia, is to be read before they get to Prop. 8, the final decision of the term.
UPDATE: The Perry (Prop. 8 decision) has been filed.
As we wrote earlier, Roberts wrote that the petitioners did not have standing to appeal the district court order. The decision was 5-4. In the minority — Kennedy, Alito, Thomas and Sotomayor. The strange split reflected differences on the narrow ground on which the case was decided, not opinions on same sex marriage.
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.
In practical terms, this means the Ninth Circuit, which upheld a district judge's finding that the Prop. 8 marriage ban unconstitutionally discriminated, had no jurisdiction to hear the appeal from people who favored the ban. The state of California didn't appeal. The Supreme Court thus vacated the 9th Circuit decision and ordered it dismissed. That leaves in place the lower court ruling striking down Prop. 8.