Dronenburg and Reasonableness
posted by Kaimipono D. Wenger
San Diego County Clerk Ernest Dronenburg filed a petition yesterday seeking to prevent California county clerks from issuing marriage licenses to same-sex couples until a set of legal issues have been clarified. A reporter from the Union-Tribune called me to discuss the filing, and I ended up being quoted for the idea that the filing was “reasonable” because of legal uncertainties, as a sort of counter-balance to an Aaron Caplan quote that the request will not not “go far.”
Both of which are, I think, correct — but in different ways. Due to the limits of the newspaper medium, a twenty-minute phone interview ended up condensed into a soundbite which — well, which may not seem reasonable. I suspect that this has to do with word limits and editors and the need for a news story with a particular narrative balance. (“I mostly agree with what the other guy said” is a boring article.) But here on blog, we can elaborate in more detail on exactly which ways the Dronenburg filing may or may not be reasonable.
It begins with the complicated procedural history of the case. To recap very briefly: The Federal District Court found Proposition 8 unconstitutional; the State of California declined to appeal; Prop 8 proponents appealed to the Ninth Circuit and then to the Supreme Court; and the Supreme Court last month found the entire appeals process invalid because appellants lacked standing. This opened up a set of questions about what effect the District Court ruling would have, since the appeal was found invalid.
The Ninth Circuit and the California Attorney General both assumed that the issue was open-and-shut: The District Court ruling on a constitutional matter had invalidated the unconstitutional state law, and this would apply statewide for all applicants. The Ninth Circuit quickly issued its order (not waiting the customary period), and the Attorney General directed clerks to begin issuing licenses accordingly.
However, there are some legitimate potential complications in implementing Perry. Note that these are not appeals; you don’t get to appeal from SCOTUS. Rather, they are complex procedural wrinkles in implementing the ruling.
First, there is is a federal remedies question about the exact statewide effect of Judge Walker’s ruling at the District Court. Does it cover everyone in the state, or merely the specific parties to the case? Proponents’ claim here seems unlikely to succeed, but the facts are complicated and the result may not be entirely clear. (For a detailed discussion this particular facet, see Vik Amar’s excellent analysis.)
Second, there is a potential state constitutional law issue raised by the language of California Constitution, Article III, Section 3.5. In fact, Proposition 8 proponents have been triumphantly touting Section 3.5′s language since the Perry opinion, arguing that the District Court lacked power to make any statewide determination that Proposition 8 was unconstitutional.
This claim seems questionable. Section 3.5 is primarily directed at administrative agencies, and I found no case law directly supporting proponents’ theory. In addition, proponents’ reading seems deeply flawed on policy grounds, as it would effectively give the State of California power to prevent any state statute from ever being ruled unconstitutional statewide, by simply declining to appeal federal district court rulings.
The Section 3.5 claim thus seems dubious at best on the merits. However, the state law issue here is sufficiently complex that it totally makes sense for a state official to seek clarification.
(It’s worth noting that Vik Amar also flagged this as a potential concern, in a blog post months ago. His conclusion then as to the applicability of Section 3.5, which seems spot-on to me: “It might, and it might not.”)
Thus, the ultimate details of implementing Perry are just a little more complicated than folks might have assumed. And the underlying legal issues may be magnified by the relatively quick action of the State and the Ninth Circuit. I do believe, as I told the U-T reporter, that it could be reasonable for a clerk to bring a petition on these issues; there is enough of a gap that an official could reasonably ask for clarification. (That’s the quote that made the paper.)
Is this particular filing a reasonable request for clarification, or is it an act of political theater? That’s a trickier question.
Petitioner’s counsel on the brief is a very conservative, religiously affiliated organization with a history of making sharply conservative legal claims. (The basic argument of their brief in Perry was that religious believers have a freedom-of-religion right not to have to interact with gay people in a way that might be seen as supporting homosexuality, and that therefore the lower court ruling violated the First Amendment.)
The specific brief here also includes several instances of broad social-policy and political-usurpation language that seem extraneous to the procedural issues. These indicia suggest that the filing may have been driven by organized political opposition to same-sex marriage, not just by an everyday clerk with a complicated (and maybe legitimate) question.
So, is the Dronenburg petition “reasonable”? This might just be an area where reasonable people can disagree.
1. For further related reading in law blogs, see Lyle Denniston (discussing the effects of this filing on other current cases) and Howard Wasserman (discussing federalism, remedies, and the importance of understanding the procedural issues).
2. An important aside: The small set of online conversations that I’ve seen so far about the Dronenburg petition have been dominated by very strongly expressed opinions about the underlying merits of marriage equality. Let’s be clear: As a legal matter, the specific claims raised in the petition have nothing to do with the merits of same-sex marriage as social policy. The petition is an entirely procedural filing about how to properly implement a federal ruling, and (absent a few unnecessary asides that have no legal effect) the brief could just as easily be about contracts for sardines. The usual culture-war soundbites are completely irrelevant to the specific legal issues raised in the petition. (Although as noted, they may be an underlying reason why the petition was filed at all.)
3. Please note that Dronenburg’s petition is not the same as the earlier emergency petition to the U.S. Supreme Court made by Proposition 8 proponents.