Last week I wrote about the Supreme Court's decision in United States v. Windsor, in which the Supreme Court held unconstitutional the provision of the Defense of Marriage Act (DOMA) that defined marriage as between one man and one woman. Justice Kennedy, writing for the court majority, decided the case on federalism grounds: the definition of marriage has traditionally been left to the states, some states have defined marriage to be between one man and one woman, others have defined marriage to be between two adults without regard to gender, and it isn't really the federal government's business to impose its own definition of marriage that disqualifies certain state-recognized marriages from being recognized by the federal government. In the particular case, two female New York residents were legally married in Canada. After DOMA was adopted, New York passed al law that recognized same-sex marriages that were legal where made as being legal in New York. One spouse died and left her estate to Windsor, the surviving spouse. Windsor claimed the marital estate tax deduction, the IRS denied the deduction based on DOMA, and the Supreme Court eventually held that the one-man-one-woman portion of DOMA was unconstitutional. Rights that New York chose to recognize, Justice Kennedy wrote, could not be taken away by the federal government.
The same day, the Supreme Court issued its opinion in Hollingsworth v. Perry, the Proposition 8 case from California. The voters of California passed the Proposition 8 initiative, basically a mini-DOMA that forbade same-sex marriage in California. A same-sex couple challenged the initiative. The state declined to defend Proposition 8, and a federal trial court held that Proposition 8 unconstitutionally discriminated against same-sex couples. The chief petitioners of Proposition 8 asked to intervene in the case, on the ground that the state wasn't defending their initiative. The California supreme court said that under California law, the chief petitioners of an initiative have standing to defend their ballot measure if the government won't, and allowed them into the case. The petitioners appealed the trial decision to the court of appeals, which affirmed the trial court and held that Proposition 8 was unconstitutional. The petitioners then appealed to the Supreme Court. The Supreme Court vacated (cancelled) the decision of the court of appeals, holding that because the chief petitioners, who didn't want to marry persons of the same sex, would be in the same position whether Proposition 8 is upheld or struck down, they had no standing to defend the measure. Even though California law (the court said) gives the petitioners special standing to defend their measure, the federal government doesn't have to recognize the special rights that the state court grants. This, of course, is contrary to the Court's decision of a few minutes earlier, in which it insisted that the federal government must recognize rights granted by the state on matters of state concern, such as marriage; apparently in the Supreme Court's view state legislation is not as important to the states as marriage is.
The kicker comes in the clever way that Chief Justice Roberts, writing for the Hollingsworth majority, disposed of the case. If he and the Court had affirmed the ruling of the court of appeals, then it would be the law of the land that Proposition 8, and by extension similar measures in other states, are unconstitutional: that is, states could not constitutionally prohibit same-sex marriage. He didn't do that; instead, he and the Court vacated the Ninth Circuit ruling on the ground that the petitioners didn't have standing to defend Proposition 8, and therefore the Ninth Circuit should not have heard their appeal. That means that the Ninth Circuit's ruling that Proposition 8 is unconstitutional is not the law any more. The decision of the trial court is still in place, I think, but that decision applies only to California and doesn't bind any other state or federal court. That's pretty clever.
But wait -- there's more. The really clever, or possibly diabolical, thing is what will happen if the case gets back to the California federal trial court. Unlike when it heard Hollingsworth v. Perry several years ago, that court is now bound by the Supreme Court's decision in Windsor, which holds that as a matter of constitutional law, the states can regulate marraige and decide who can get married. (The Windsor court majority very carefully did not say that states were required to recognize same-sex marriages.) The upshot? The Windsor court in effect said that Proposition 8 is constitutional, and the Hollingsworth court kept the California decision from preventing the other 49 states from banning same-sex marriage.
Chief Justice Roberts pulled off an amazing bit of legal legerdemain: the result of the two victories for proponents of same-sex marriage is that 49 states can now constitutionally ban it.