No precedent on gay marriage in the Prop 8 case. The S. Ct. does not decide, 5-4. Roberts, Scalia, Ginsburg, Breyer, and Kagan majority.
The Supreme Court has dismissed a closely-watched appeal over same-sex marriage on jurisdictional grounds, ruling Wednesday private parties do not have "standing" to defend California's voter-approved ballot measure barring gay and lesbians couples from state-sanctioned wedlock. The ruling permits same-sex couples in California to legally marry. The 5-4 decision avoids for now a sweeping conclusion on whether same-sex marriage is a constitutionally-protected "equal protection" right that would apply to all states. The case is Hollingsworth v. Perry (12-144).
In the end, what the Court fails to grasp or accept is thebasic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests inthe 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 decisionholding that state law authorizes an enacted initiative’sproponents to defend the law if and when the State’s usuallegal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability. Those errors necessitate this respectfuldissent.