Hollingsworth v. Perry (2013)


Hollingsworth v Perry, 570 U.S. ____ (2013), was a United States Supreme Court case that let stand a California federal district court’s ruling — declaring a state ban on same-sex marriage unconstitutional — based on the petitioner’s lack of Article III standing. The case began in 2009 in the U.S. District Court for the Northern District of California which overturned Proposition 8, a ballot initiative that banned same-sex marriage, on the grounds that it violated the Equal Protection Clause and Due Process Clause of the U.S. Constitution. The state of California government officials refused to defend Proposition 8, thus the ballot sponsors decided to defend the initiative in court. The case eventually reached the Supreme Court in 2013. The Court decided that the petitioners for Proposition 8 lacked Article III standing to represent the state of California in federal court. Because the petitioners did not have standing to appeal the district court’s ruling, the Supreme Court remanded the case to the Ninth Circuit with instructions to vacate their ruling. This left the District Court ruling as the final decision in the case.

First Timeline


Proposition 22 was a law enacted by California voters in March 2000 that prevented same-sex couples from marrying. It was proposed by the initiative process and authored by state Senator William Knight. The Proposition was informally known as the Knight Initiative, and was added to section 308.5 of the Family Code, which stated “Only marriage between a man and a woman is valid or recognized in California”.

In 2008, the California Supreme Court held in the case In re Marriage Case that requiring marriage of opposite-sex applicants violated the California Constitution. In re Marriage Cases was a California Supreme Court case where the Court held that laws treating people differently based on sexual orientation should be subject to strict judicial scrutiny. An existing law limiting marriage to opposite-sex couples under the California Constitution may not be used to prevent them from marrying. Shortly after, same-sex couples were allowed to marry in the state of California. The California Supreme Court ruled that same-sex couples’ access to marriage is a fundamental right under Article 1, Section 7 of the California Constitution.  The decision stated that Proposition 22 was unconstitutional. This was the first case in the US that established that sexual orientation should be protected under the Equal Protection Clause.

In November 2008, Proposition 8 was a ballot proposition created by opponents of same-sex marriage. It was sponsored by ProtectMarriage.com. Proposition 8 changed the California Constitution by adding a new section 7.5 to Article 1, which reads “only marriage between a man and a woman is valid or recognized in California”. Because Proposition 8 was passed by a simple majority of the electorate, it became an amendment to the California Constitution. This change restricted the definition of marriage to a man and a woman, thus eliminating same-sex couples’ right to marry.

Strauss v. Horton (2009) was a consolidation of three lawsuits under state law following the passage of California’s Proposition 8. The suits were filed by a number of gay couples and governmental entities. Three of the six were accepted by the Supreme Court of California. The ruling from the Court established that Proposition 8 was valid and that marriages performed before the vote went into effect and would remain valid. In regards to the constitutionality of the proposition, the decision stated that Proposition 8 did not violate Due Process or Equal Protection Clause of the state constitution. The proposition only narrowed the definition of the term “marriage.” Strauss v. Horton was mooted by Hollingsworth v. Perry.

In May 2008, the Alameda County Court denied Kristen Perry and Sandra Stier a marriage license. Perry and another couple sued the county clerks and several state officials (Arnold Schwarzenegger, Attorney General Jerry Brown, and two officials of the Department of Public Health). Jerry Brown and Arnold Schwarzenegger decided not to defend the case, so two groups, ProtectMarriage.com, led by Senator Dennis Hollingsworth, and Campaign for California Families, became the defendants in the case.

Procedural History

  • May 22, 2009 – Two same sex couples– Kristen Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo– file a lawsuit challenging Proposition 8 in the US District Court for the Northern District of California with the help of attorneys Ted Olson and David Boies. The lawsuit was captioned Perry v. Schwarzenegger and assigned to Judge Vaughn Walker.
  • May 27, 2009 – The plaintiffs file a motion for a preliminary injunction to stop the enforcement of Proposition 8 and permit same sex couples in California to marry while the lawsuit is being decided.
  • May 28, 2009 – The official proponents of Proposition 8 intervene to defend the proposition.
  • June 30, 2009 – Judge Walker approves the motion of the proponents of Proposition 8 to intervene in the case, and he declines the plaintiffs motion for a preliminary injunction which maintains the marriage ban during the trial.  
  • July 8, 2009 – Lambda Legal, the American Civil Liberties Union (ACLU), and the National Center for Lesbian Rights (NCLR) filed a motion to intervene on behalf of three LGBT community organizations (Our Family Coalition, Lavender Seniors of East Bay, and Parent, Families, and Friends of Lesbians and Gays). These organizations had broad knowledge of the harms to same-sex couples and their families from marriage discrimination.
  • July 23, 2009 – The City and County of San Francisco filed a motion to intervene in the case.
  • August 19, 2009 – Judge Walker denies the motions to intervene of the three community organizations, but he allows the City of San Francisco to intervene.  
  • August 21, 2009 – The plaintiffs serve discovery requests from the proponents, seeking documents and communications from the Proposition 8 campaign.
  • September 9, 2009 – The proponents of Proposition 8 request summary judgement.
  • October 14, 2009 – Judge Walker denies summary judgement requested by the proponents of Proposition 8, so the case will go to trial.
  • January 11, 2010 – trial begins.
  • June 16, 2010 – Judge Walker presides over closing arguments.
  • August 4, 2010 – Judge Walker strikes down Proposition 8. In his decision he finds that the proposition violates the Due Process and Equal Protection Clauses of the Constitution. The defendants immediately appeal the decision.
  • December 6, 2010 – The Ninth Circuit Court of Appeals holds a three-judge panel to hear oral arguments.
  • January 4, 2011 – The Ninth Circuit asks the California Supreme Court to clarify a state-law question. They asked whether the proponents of initiative measures could defend its constitutionality.
  • April 25, 2011 – The proponents in Perry file a motion to vacate Judge Walker’s decision. They argue that he should have recused himself because of his personal interest in the case.
  • June 14, 2011 – The US District Court for the Northern District of California denies the motion to vacate Judge Walker’s decision. They ruled that a judge’s sexual orientation does not disqualify him or her from hearing a case that involves constitutional rights held by every individual.
  • June 24, 2011 – the proponents appeal the District court decision that ruled against vacating Judge Walker’s decision.
  • November 17, 2011 – The Supreme Court of California issues an opinion on the question of state law posed by the Ninth Circuit. The court finds that the proponents may defend voter initiatives if state officials chose not to.
  • December 2011 – Ninth Circuit hears oral argument on whether to overturn Judge Walker’s decision that struck down Proposition 8 as unconstitutional.
  • February 7, 2012 – A three-judge panel of the Ninth Circuit upheld Judge Walker’s decision that declared Proposition 8 unconstitutional. However, they made their decision on narrower grounds, applying only to California. Proponents of Proposition 8 requests an en banc proceeding of the Ninth Circuit.
  • June 5, 2012 – The Ninth Circuit votes against hearing the case again en banc.
  • July 30, 2012 – The Proponents petition for a writ of certiorari by the Supreme Court.
  • August 24, 2012 – The plaintiffs in Perry request that the Supreme Court deny the writ of certiorari.
  • December 7, 2012 – The Supreme Court grants a writ of certiorari.
  • March 26, 2013 – The Supreme Court begins to hear oral arguments. Listen here


  • Do the claimants have standing to argue this case under Article III of the U.S. Constitution?
  • If so, does the 14th Amendment’s Equal Protection Clause prohibit California from defining marriage as a partnership between a man and a woman?


In Hollingsworth v. Perry, the Supreme Court held that the petitioners did not have standing to argue the case under Article III Section 2 of the U.S. Constitution. The Court did not address the constitutionality on whether the 14th Amendment’s Equal Protection Clause prohibits California from defining marriage as a partnership between a man and a woman. Chief Justice John Roberts delivered the majority opinion in a 5-4 decision. Along with Chief Justice Roberts, Justices Scalia, Ginsburg, Breyer, and Kagan joined the majority opinion. Justice Kennedy delivered the dissenting opinion. Along with Justice Kennedy, Justices Thomas, Alito, and Sotomayor joined dissenting opinion. The Supreme Court reversed and remanded the decision with instructions to dismiss for lack of jurisdiction.

Majority Opinion (Roberts)

Chief Justice Roberts wrote the majority opinion, which was joined by Justices Scalia, Ginsburg, Breyer, and Kagan. The Supreme Court held that federal courts only have the authority to decide cases in which the petitioners must suffered a “concrete and particularized injury” that can be redressed through court action. The petitioners did not have standing under Article III because they were not directly affected by Proposition 8. Also, private citizens could not represent the state of California because they have to assert their own rights. Because the petitioners did not have standing, the Ninth Circuit Court of Appeals did not have jurisdiction over the case.

Dissenting Opinion (Kennedy)

Justice Kennedy wrote the dissenting opinion, which was joined by Justices Thomas, Alito and Sotomayor. Justice Kennedy argued that the Article III case or controversy requirement did not prevent the proponents of Proposition 8 from representing the State of California in the case. He argues that the Court’s opinion did not account for California’s law allowing a third party to represent the state’s interests when state officials decline to do so. Kennedy argues that the State of California does not have to meet the Restatement of Agency requirement or adhere to the Court’s opinion of how the state should define its laws. The California Supreme Court’s definition of the proponent’s right to represent the state should be binding on the Supreme Court, and it should be sufficient for establishing standing and meeting the justiciability requirements of Article III of the Constitution. Therefore, the Court should defer to states’ rights when deciding which parties have standing in a case.

Full Text of Opinions

Significance/ Impact

Hollingsworth v. Perry did not allow same-sex marriage in the United States, however, it was a significant moment for the LGBT community to gain equal marriage rights. The Supreme Court’s decision redefined what it meant to have standing as proponents of a state initiative. The most immediate impact of this case was that same-sex couples had the legal right to marry in California.

Judge Walker, the district court judge, set a precedent that would be valuable to anybody wishing to challenge restrictions on gay marriage in every state. Walker stated that Proposition 8 was unconstitutional because it violated the Equal Protection Clause and the Due Process Clause of the 14th Amendment, therefore it was overturned. There was an acknowledgement that same-sex couples have the right to marry, and those rights are protected under the U.S. Constitution. The Perry case was distinctive because it claimed that a prohibition of same-sex marriage was a violation on federal constitutional grounds. 

The Perry case paved a way for a larger national debate regarding gay rights. Obergefell v. Hodges (2015) was a United States Supreme Court decision which the Supreme Court held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the United States Constitution. The Supreme Court stated that the 14th Amendment requires states to grant same-sex couples the right to get married.

The Supreme Court established a division between State and Federal standing requirements for constitutional initiatives. States, like California, provide generous standing to proponents so the officials cannot exclusively control the defense of people’s initiative process. The Supreme Court, in Hollingsworth v Perry, narrowed the defense of state initiatives to state officials or agents. The Supreme Court’s decision on standing allowed government officials to nullify initiatives by refusing to defend them. Government officials may choose not to defend initiatives based on political reasons.

Second Timeline

Constitutional Provisions

  • Article III Section 2
  • 14th Amendment’s Due Process Clause and Equal Protection Clause

Government Law Under Review

  • Proposition 8

Important Precedents

  • In re Marriage Cases (2008)
  • Strauss v. Horton (2009)
  • Diamond v. Charles (1986)
  • Romer v. Evans (1996)
  • Lujan v. Defenders of Wildlife (1992)
  • Massachusetts v. Mellon (1923)
  • Powers v. Ohio (1991)
  • Karcher v. Daggett (1983)
  • Flast v. Cohen (1968)

Important Subsequent Cases

  • Wittman v. Personhuballah (2016)
  • Maricopa County v. Lopez-Valenzuela (cited in the concurring opinion) (2015)
  • United States v. Windsor (2013)
  • Obergefell v. Hodges (2015)

Web Resources

Chicago-Kent College of Law at Illinois Tech. “Hollingsworth v. Perry.” Oyez. Available here.

Duignan, Brian. Encyclopedia Britannica. “Hollingsworth v. Perry.”   Available here.

Smart, Nicole. Hollingsworth v. Perry. YouTube video, duration 3:32. Posted March 2014. Available here.

Schwartz, John. “Between the Lines of the Proposition 8 Opinion.” New York Times. Available here.

Waltemeyer, Carrie and Allison McCartney. “Supreme Court Rules in Favor of Gay Rights.” pbs.org. Last modified July, 3, 2013. Available here. 

Academic Books, Articles, and Law Reviews

Blalock, Corinne. “Hollingsworth v. Perry: Expressive Harm and the Stakes of “Marriage.”” Duke Journal of Constitutional Law & Public Policy Sidebar, vol. 8: 217-246. Available here.

Boies, David and Theodore B. Olson. Redeeming the Dream: The Case for Marriage Equality. New York: Viking Penguin, 2014.

Borgmann, Caitlin E. “Hollingsworth v. Perry: Standing over Constitutional Rights.” CUNY Law Review, vol. 17 (2013): 27-46. Available here.

“Hollingsworth v. Perry.” LII / Legal Information Institute. Available here.

Kafker, Scott L., David A. Russcol. “Standing at a Constitutional Divide: Redefining State and Federal Requirements for Initiatives After Hollingsworth v. Perry.” Washington and Lee Law Review, vol. 71 (2014): 229-303. Available here.

Melone, Matthew A., and George A. Nation III. “Standing” on Formality: Hollingsworth v. Perry and the Efficacy of Direct Democracy in the United States.” BYU Journal Of Public Law 29, no. 1 (December 2014): 25. Advanced Placement Source.

Michel, Lauren T. 2014. “Disappointment and Elation: Standing in Hollingsworth v. Perry.” Law & Sexuality: A Review Of Lesbian, Gay, Bisexual & Transgender Legal Issues 23, 179-190. LGBT Life with Full Text.

Yoshino, Kenji. Speak Now: Marriage Equality on Trial: The story of Hollingsworth v. Perry. New York: Crown Publishers, 2015


Spring 2017: Samantha Blount and Christina Fortier

Tasks for Future Contributor

  • Arguments by Petitioner
  • Arguments by Respondent
  • Decision analysis
  • Scholarly commentary and debate