Understanding standing: The Court’s Article III questions in the same-sex marriage cases (VII)
on Jan 21, 2013 at 9:01 pm
On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed tomorrow, on January 22. In advance of those filings, the blog has published a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the final post in that series.
If the Court were to hold that the petitioners in Hollingsworth v. Perry — the Proposition 8 initiative sponsors — do not have Article III standing to appeal, what then? What would become of the judgments below, and of Proposition 8 more broadly?
The Supreme Court presumably would reverse and vacate the judgment of the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8 proponents were also the only parties to appeal to that court from the district court judgment. If that were to happen, the Ninth Circuit’s opinion would no longer have precedential effect that would govern future cases challenging California’s (or any other state’s) refusal to recognize same-sex marriages. (In any event, it is likely the court of appeals will next consider the issue of same-sex marriage not in a California case but instead in a case coming up from Nevada. Because the prohibition in Nevada law does not reverse a previous right to same-sex marriage in that state, the rationale of the Ninth Circuit’s opinion in Perry would not be directly applicable to the Nevada case, regardless of whether the Perry decision retains any precedential value. That Nevada case will instead require the court to decide whether the Fourteenth Amendment permits Nevada to afford same-sex couples all of the benefits and responsibilities of marriage (under the moniker of “domestic partnerships”), but to deny them the status of state-sanctioned “marriage” itself.)
But what about Judge Walker’s judgment and injunction in the district court in Perry? What would become of that?
Most likely, nothing — it would stand. In the district court, the named defendant state and local officials did appear, and there was complete Article III adversity between them and the plaintiffs. Judge Walker’s injunction was entered against the named defendants, and it altered the legal relationship between them and the plaintiffs. Therefore it should remain intact.
So what effect does that injunction have? It reads as follows: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.” (That would be Proposition 8, which provides: “Only marriage between a man and a woman is valid or recognized in California.”)
What would it mean if that injunction remained in place?
Well, for one thing, it would mean that the two couples who sued in Perry — Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo — would receive marriage licenses from the defendant Clerks of Alameda and Los Angeles Counties, respectively.
But would the injunction have any further effect, on other same-sex couples in California?
It shouldn’t — not of its own force, anyway.
It is not clear from the face of the injunction whether Judge Walker intended it to apply only to the defendants’ treatment of the two plaintiff couples, or whether Judge Walker instead intended to prohibit the defendants from denying marriage licenses to any same-sex couples in California.
To the extent the injunction is understood to apply to couples other than the named plaintiffs — which is what the parties in the court of appeals appeared to assume — the Supreme Court could use this case as an opportunity to clarify that district court judges generally do not have the power to issue injunctions that protect persons other than the parties before them.
District court judges occasionally assume that if they declare a law to be invalid, they have the power to enjoin state or federal officials from implementing it across the board, not only with respect to the plaintiffs seeking relief, but also as applied to other persons who are not parties to the suit. But as the Ninth Circuit itself has repeatedly explained (in, for example, Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011), and the cases cited therein; and in Meinhold v. U.S. Department of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994)), that is not so, unless the case is a class action or a broader injunction is necessary to ensure that the plaintiffs receive complete relief. See also U.S. Department of Defense v. Meinhold, 510 U.S. 939 (1993).
[UPDATE: In their briefing subsequent to this post, the parties all appear to agree that Judge Walker’s injunction is best construed to also guarantee non-party same-sex couples the right to receive California marriage licenses. The Proposition 8 defenders agree with me (see p.18 of their brief) that if the injunction is so construed, Judge Walker exceeded his remedial authority, because district court judges generally do not have the power to issue injunctions that protect persons other than the parties before them, absent a class action or a case in which a broader injunction is necessary to ensure that the plaintiffs receive complete relief. The Proposition 8 challengers disagree, as do the City and County of San Francisco, who argue at page 19 of their brief that the two same-sex plaintiff couples themselves would be harmed if the injunction were limited to their own licenses because California’s continued denial of marriage to other same-sex couples would have a “stigmatizing” effect even on married couples such as the plaintiffs by “marking them as second-class citizens.”
The Proposition 8 challengers have also raised a related issue that I neglected in my post: 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. (The San Francisco brief goes further, arguing that the Supreme Court “has no jurisdiction to consider [petitioners’] objections to the scope of the district court’s injunction.”) This somewhat arcane issue — whether the Court can and should address the scope of Judge Walker’s injunction in the event it dismisses the petition on standing grounds — is an issue to watch for in the Proposition 8 defenders’ reply brief (to be filed on March 19) and at oral argument on March 26.]
If the Court (or the Ninth Circuit on remand) were to clarify that Judge Walker’s injunction remains in place but that it offers relief only to the two plaintiff couples, California officials will then have a decision to make about how to proceed in other cases, assuming they continue to be of the view that Proposition 8 is unconstitutional. They could, for example:
— Decide not to enforce Proposition 8 across the board, based upon the determination of the relevant state official(s) that it violates the Fourteenth Amendment. (I assume this would be the Governor and/or the Secretary of State; but I do not know the extent to which they have the power under California law to direct County Clerks how to respond to requests for marriage licenses.)
— Do what they did in Perry in every case — namely, deny a marriage license to a same-sex couple, refuse to contest the subsequent request for judicial relief, and then decline to appeal. (This middle option doesn’t have much to recommend it, quite frankly.)
— Take a page from the federal executive, i.e., “enforce-but-don’t-defend,” but also continue to take whatever steps are necessary, including filing notices of appeal, to bring a well-framed case before the Supreme Court for ultimate resolution . . . and thereafter act in accord with the Court’s ultimate resolution.
There is a burgeoning scholarship, and debate, about which of these steps — or, for that matter, the option of simply trying to defend the law notwithstanding the Governor’s public determination that it is unconstitutional — is appropriate and under what circumstances. But that’s a topic we can air further next summer, in the event the state officials are confronted with such a choice. [UPDATE: Moreover, as a reader notes, the whole enforcement question could be mooted out in the short run, in the event the California electorate votes for repeal of Proposition 8 on the November 2014 ballot if the Court does not affirm.]