The Supreme Court’s Decision in Hollingsworth v. Perry Effectively Renders Prop 8 Unconstitutional

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10 Responses

  1. Katie Eyer says:

    Also relevant: this announcement by Governor Brown that the state’s counties have been directed to begin issuing marriage licenses to same-sex couples as soon as the stay issued by the Ninth Circuit is lifted: http://gov.ca.gov/news.php?id=18111.

  2. Joey Fishkin says:

    There has been some commentary (e.g. Tom Goldstein) to the effect that some officials will likely issue marriage licenses once the stay is lifted, others not. A patchwork, in other words.

    I don’t really understand why that would be. If a local official responsible for marriage licenses refuses to follow the instructions of the CA Dept of Public Health, I would imagine that the local official would face some sort of internal disciplinary action. I’m not sure why anyone would expect a patchwork at this point, as opposed to just officials following the state’s direction, in light of the District Court’s ruling.

    In other words, I’d expect marriages everywhere in the state (not just in the Northern District etc.) once the Ninth Circuit follows up on today’s opinion. Am I missing something?

  3. Joe says:

    Gov. Brown instructed local officials to grant marriage licenses to same sex couples once the injunction is lifted. A past state ruling upheld the authority of the state to centralize local policy in this fashion, after mayor tried on his own to grant same sex marriages.

    My question would be if there is any possibility a party with standing will arise, such as a litigant in a civil suit based on a party being “married,” might arise in the future to defend Prop 8. Broad domestic partnership protections make the ground here narrow, but seems someone might be available eventually.

  4. Babak Siavoshy says:

    Joey — I haven’t read that analysis. The question it raises, it seems, is whether the governor of California has the power to require counties not located in the Northern District to comply with the Northern District’s ruling on the legality of Prop 8. If Joe is right, then the California courts have already held that the governor has that power, at least in this situation, and that settles it.

    If the governor doesn’t have that power, then holy smokes this could get complicated. Say a county refuses to issue a marriage license. A same-sex couple could challenge that decision under the state and federal constitutions (presumably the governor and AG would join as amici or intervene as a party). The plaintiffs (same sex couple) would have to argue (inter alias) that the CA Supreme Court’s In Re Marriage decision and Judge Walker’s Perry decision controls. The county would have to argue that Prop 8 controls in all counties outside of the Northern District, even though the state believes otherwise and refuses to defend or enforce Prop 8 anywhere in California. To make things worse, the county might arguably (after today’s Supreme Court opinion) have no standing to defend Prop 8′s constitutionality in court — though that result would itself be somewhat strange, given the county’s reliance on Prop 8 to support its decision not to issue marriage licenses. It’s not even clear the reviewing court in this hypothetical would have “case or controversy” jurisdiction over the federal constitutional issues. And the overall analysis might depend in part on whether the case is before a state or federal court.

    This hypothetical is, in my view, a reductio ad absurdum of any argument that counties, anymore than people, should be allowed to adopt a patchwork of legal interpretations different from the state’s in this context. In other words, a rule allowing each county to pick its own interpretation of federal and state law in this context would seem to lead to pretty absurd results. That suggests to me a court should require counties to obey the governor (if that’s not already the law).

    To be sure, I’m not an expert in the law in this area, so I’d love to hear what others think.

  5. Babak Siavoshy says:

    And here is Marty Lederman’s analysis of this particular issue from SCOTUSblog. http://www.scotusblog.com/2013/01/understanding-standing-the-courts-article-iii-questions-in-the-same-sex-marriage-cases-vii/

    Option 1 at the end of his piece is the one we’re discussing in the comments.

    And here’s the argument that could ultimately rule the day: “Even if it is arguably the case that Judge Walker lacked the authority to issue an injunction beyond the two plaintiff couples, both the private-party challengers (p. 18 of their brief) and the San Francisco respondents (p.19 of their brief) argue that because no party with standing appealed to challenge the scope of that injunction, the Court need not and should not address it.”

  6. Bruce D. says:

    Even with the supreme courts newest decision, same sex couples still have a long way to go everywhere in the US.

  7. PrometheeFeu says:

    “Here’s another confusing aspect of the Supreme Court’s decision. After Perry, gay marriage is a state constitutional right in California (per the State Supreme Court’s previous ruling), and attempts to change that state constitutional right (e.g., Prop 8) are unconstitutional under the federal constitution — but strictly speaking, only in California (and perhaps specifically the Northern District, where Judge Walker issued his ruling).”

    I would tend to disagree. Let’s say CA passes another Prop 8-style amendment. In order to get it struck down you have to go before a district court. But Judge Walker’s opinion is not binding precedent in front of another district court. (or even his own district court) So you have to argue the case all over again… Or am I missing something?

  8. brian says:

    It’s all over in California (the Northern District issue matters not a bit), but perhaps the issue might come up elsewhere ifsome judge in, say, Alabama or Egypt has to decide whether a Californian or former Californian in his court is married or not. California’s constitution (as amended by Prop 8) pretty clearly says that same-sex marriages aren’t marriages; there aren’t any contrary constructions of the as-amended Constitution by the STATE courts; the California executive branch’s views on, or inability to enforce, Prop 8 might be viewed by many judges as beside the point; and then it’s down to that judge’s view of the federal constitutional issue, which that judge will need to decide free of any deference to Judge Walker. Perhaps an unlikely scenario, since most judges inclined to second-guess Walker on that point might instead rely on what’s left of DOMA (in the US) and/or public-policy grounds for non-recognition of foreign marriages. But consider the position of a conscientious judge in a US state that a) recognizes out-of-state same-sex marriages, but in which b) the State’s appellate courts haven’t held same-sex marriage required as a matter of federal constitutional law. If the validity of a California same-sex marriage matters in a case before such a judge, doesn’t he/she still have to decide on his/her own whether Prop 8 is constitutional?

  9. Joe says:

    Let’s say some couple gets married in CA and goes to another state which recognizes the marriage but does not recognize out of state “domestic partnerships.” The marriage is the basis of a civil suit in that state. Is it possible for a party in that civil suit to have standing to challenge the suit because it the “marriage” was barred by Prop 8? Is there some legal reason (estoppel or otherwise) against this?

    Anyway, it surely isn’t impossible to imagine another amendment being passed, e.g., one that allows the legislature to decide the question of SSM, and a new lawsuit being in place. The district court ruling doesn’t stand in place as a bar for all amendments and the appeals ruling was limited in scope. It is unclear that ANY amendment would not pass muster under that ruling.

    It seems to me that Prop 8 needs to be repealed to fully assure that SSM in CA is truly protected.

  10. PrometheeFeu says:

    Well, the Federal Government could now have standing in all sorts of cases thanks to the DOMA case.