If, as many including myself believe likely, the Supreme Court resolves the Prop 8 case by either finding that the proponents of Prop 8 lack standing or that the Court should dismiss the appeal on prudential grounds, what will happen to marriage law in California? Ultimately, but perhaps in a prolonged and ragged fashion, Prop 8 will go away and same-sex marriage will be reinstated in the state. It may not be quick or clear, however. The situation reminds me of how Al Gore has described the 2000 election: You win some; you lose some; and then there’s that lesser known third category.
The reason behind the potential messiness is the procedural posture of the case, and – warning – understanding this takes you into the weeds of the law of litigation (or it would, if I spelled out the details).
If the Supreme Court holds that the Proponents do have standing to challenge Prop 8 but that it was a mistake for the Court to grant review of their appeal, the case goes back to the Ninth Circuit, and its decision remains good law, creating binding precedent within that circuit. That decision affirmed the trial court’s ruling, so the stay that blocked the original injunction from taking effect would be lifted.
If the Supreme Court holds that the Proponents lack standing, the result is to vacate the Ninth Circuit decision (because that court lacked jurisdiction of the initial appeal filed by the Proponents). The district court ruling might also be vacated, if the lack of jurisdiction also infected the trial. But even if the trial court lacked the authority to issue its injunction, the plaintiffs can then seek a default judgment that Prop 8 is unconstitutional.
Either way – What impact will a ruling by the trial court judge have? It binds only the parties to the lawsuit, and for some reason that no one has either admitted or figured out, the plaintiffs’ lawyers sought an injunction that covered only the four individual plaintiffs and the named defendants. Although the governor and attorney general were defendants, only two county clerks are bound by the order. It may seem silly that a governor can be bound but not a county clerk, but – depending on truly arcane and apparently conflicting aspects of state law – county clerks may be independent officers of state authority. And in any event, the injunction can properly require issuance of licenses only to the four plaintiffs.
This problem is not simply a law school exam question with no real world effect. It was foreshadowed during oral argument in the Ninth Circuit, when the judges grilled David Boies about why the case was structured in this way. From my post on the 2010 argument:
[T]he plaintiffs’ lawyers acknowledged that Judge Walker’s injunction would apply to only the two county clerks named as defendants, leaving all other county clerks free to deny marriage licenses to same-sex couples. The judges seemed surprised to hear this and skeptical about the plaintiffs’ further point that Judge Walker’s injunction would be enforced by the governor and attorney general going into state court to get an additional order compelling any dissident clerks to abide by their interpretation of state law.
In his concurrence in a later ruling, Judge Reinhardt noted rather pointedly:
[A]ccording to what their counsel represented to us at oral argument, the complaint they filed and the injunction they obtained determines only that Proposition 8 may not be enforced in two of California’s fifty-eight counties. They next contend that the injunction may not be appealed but that it may be extended to the remaining fifty-six counties, upon the filing of a subsequent lawsuit by the Attorney General in state court against the other County Clerks. Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.
628 F.3d 1191, 1201.
Of course, there is political reality as well, and everyone expects Governor Brown and Attorney General Harris to have figured out a way to declare that the state will voluntarily accede to the trial court order, thus opening all county clerks’ offices to gay couples seeking to marry. Ted Boutrous, Ted Olson’s law partner and deputy in this litigation, told the LA Times – in almost so many words – not to worry, we’ve gotten the deal set up.
If no one contests the deal, then it’s a wrap. And god knows, this drama is starting to feel like The Ring Cycle, ie, way overdue for an ending. Boutrous also told the Times that he hoped the Proponents would just give up after the Supreme Court rules. Hoping for the other side to cave is usually not the most airtight strategy for winning a lawsuit, but I’m with him on this one. In fact, if there had been another popular vote rather than a lawsuit, Prop 8 would be dead and buried already.
So, what are the not-so-great scenarios that might unfold and delay a happy ending even longer, if only by casting a legal cloud over same-sex marriages that go forward immediately? If any county clerk refuses to marry same-sex couples or if an individual who supports Prop 8 challenges a clerk’s decision to accede to the (past or future) district court ruling, that case would be filed in state court. (Details here.) And all the obscure, mind-numbing points of California state procedural law will be briefed and argued and appealed and briefed and argued…
Sooner or later, after the Supreme Court rules, the smoke will clear. But it might be quite a bit later.