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The fate of same-sex marriage in California after Perry

Back before the oral arguments in Perry, I wrote a post explaining what might happen to same-sex marriage in California if the Supreme Court were to hold that the Proposition 8 sponsors did not have standing to appeal from Judge Vaughn Walker’s judgment of August 4, 2010.

Now that that is indeed what has happened, what does it mean for the marriage rights of same-sex couples in California?

The Supreme Court concluded that the judgment of the Ninth Circuit must be vacated, and remanded the case to the court of appeals “with instructions to dismiss the appeal for lack of jurisdiction.”  What about the district court judgment, however?  In my previous post, I surmised that perhaps the Supreme Court would say something about the proper scope or application of the trial court’s judgment in the event the Court vacated the court of appeals’ decision.  Not so: the Court majority is silent on the question of how Judge Walker’s injunction should be applied.  Notably, however, in his dissenting opinion Justice Kennedy wrote that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

Judge Walker’s injunction — see page 136 of his opinion — therefore remains unchanged by the Supreme Court’s decision; it is in effect the law of the case. What does this mean, as a practical matter, for same-sex marriages in California?  Let’s take the relevant questions in turn:

1. When will the injunction take effect?

A: When the court of appeals lifts the stay that it imposed on the district court’s judgment.  The Supreme Court’s mandate to the court of appeals will not be issued for at least 25 days.  As far as I know, however, the court of appeals does not have to wait for the Supreme Court’s mandate in order to lift its stay of the trial court’s injunction.  And Attorney General Harris apparently has asked the court of appeals to lift the stay as soon as possible.  Therefore the trial court’s injunction will presumably go into effect on Monday, July 22d at the latest . . . and perhaps earlier.

2. Which state officials are bound by the injunction?

A: Judge Walker’s injunction reads: “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.” (Section 7.5 is Proposition 8, which provides: “Only marriage between a man and a woman is valid or recognized in California.”)

The defendants who are bound by the injunction are six California officials—the County Clerks of Alameda County and Los Angeles County, the Governor, the Attorney General, the Director of the Department of Public Health & State Registrar of Vital Statistics, and the Deputy Director of Health Information & Strategic Planning for the Department of Public Health. The injunction clearly binds these six officials.

Moreover, in a memorandum dated June 3, 2013, Attorney General Harris concluded that, under California law, all California County Clerks—officers who have responsibilities to issue marriage licenses and otherwise implement state marriage laws—are “under the control or supervision” of the Director of the Department of Public Health & State Registrar of Vital Statistics.  In support of this conclusion, the Attorney General relied primarily upon language in the California Supreme Court opinion in Lockyer v. City and County of San Francisco, 95 P.3d 459, 498 (Cal. 2004).  I do not know enough about California law to assess whether the Attorney General’s opinion is correct that County Clerks are subject to the supervision of the Director of DPH . . . but assuming it is correct, then the injunction would also run against all California County Clerks, at least with respect to their function of issuing marriage licenses.

3. Which same-sex couples does the injunction protect?

A: Well, it obviously benefits the two couples who sued in Perry — Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo.  They will be able to obtain marriage licenses from the defendant Clerks of Alameda and Los Angeles Counties, respectively.

What about the many other California same-sex couples who were not plaintiffs in the case?  In my earlier post, I wrote that 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.”

But in the briefing subsequent to my post, all the parties appeared to agree that Judge Walker’s injunction was intended, and is best construed, to also guarantee non-party same-sex couples the right to receive California marriage licenses.  Therefore I think it’s fair to assume the injunction will be interpreted, by public officials and courts alike, to protect all same-sex couples, not limited to the four named plaintiffs.  As Lyle explains, that is certainly the view of the relevant California officials, including the Governor and the State Registrar, who have advised state officials accordingly.

Did Judge Walker have the authority to issue such an injunction protecting non-parties? I don’t think he did, for the reasons I described in my previous post—primarily, that 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.  (On the other hand, not a single Justice on the Supreme Court uttered a word today to call into question the legality of the breadth of Judge Walker’s injunction, a fact that will certainly lend support to the counterargument that Judge Walker did not overreach in crafting the scope of the order, in the event that were to become an issue in further litigation.)

But even if I were right about that legal proposition—that is to say, even if Judge Walker’s injunction should have been limited to the protection of the plaintiffs before him—so what?  That injunction nevertheless governs the case, and it will be operative, regardless of whether it should have been more tailored.  And in their briefs to the Supreme Court, both the private-party challengers of Prop 8 and the City and County of San Francisco stressed that no party (no party with standing, anyway) had challenged the scope of that injunction.

Now that the injunction will finally go into effect, could there be a new challenge to the application of Judge Walker’s decision to non-party couples?  If so, such a challenge presumably would come from either the named defendants (virtually inconceivable), or from a County Clerk who does not wish to issue a marriage license to a couple who were not plaintiffs in the Perry case.

My tentative view is that such a County Clerk challenge is a very unlikely prospect, for several reasons:

First, such a Clerk might be subject to the direction of the State Director of DPH as a matter of California law, and the Director might have the authority to forbid such a challenge and to direct the Clerk to issue the license. (Again, I am not sufficiently well-versed in California law to know for sure on this point.)

Second, a motion by such a County Clerk for relief from the judgment as applied to non-party couples, presumably pursuant to Rule 60 of the Federal Rules of Civil Procedure, “must be made within a reasonable time,” according to Rule 60(c)(1). And it’s now been almost three years since the court issued the injunction.  On the other hand, the injunction has been stayed most of that time, which might affect whether a motion now would be “reasonable.” (Any Rule 60 mavens out there who might know more about this?)  [UPDATE:  Thoughts from Howard Wasserman on this and related issues.]

Third, and most importantly, why bother?  A County Clerk knows that if he refuses to issue a marriage license, the couple in question could simply drive to another county to apply to a different Clerk.  Moreover, such a Clerk thinking of challenging the scope of the injunction also knows that if that collateral attack were successful, the requesting couple could then bring their own constitutional lawsuit against the Clerk, and would almost certainly prevail on the merits in the district court and in the Ninth Circuit—especially in light of the Supreme Court’s decision today in Windsor.  Even a successful challenge to the scope of Judge Walker’s injunction, therefore, would only (at best) delay an almost inevitable injunction against the Clerk in question.  Hardly worth the candle, then.

If I’m right that no Clerk is likely to challenge the application of the injunction to non-plaintiffs, or in any event that any such challenge is unlikely to be successful in permitting the Clerk to deny license applications in the long run, the result will be that County Clerks throughout California will be legally required to issue marriage licenses to same-sex couples . . . and most or all will be willing or required to do so by July 22d at the latest.  Judge Kennedy, then, will have been proven correct that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

That is to say:  Same-sex marriage in California is here to stay.  And therefore, as of August 1, marriage equality will be a reality in the District of Columbia and thirteen states:   California, Connecticut, Delaware (where a new law takes effect July 1), Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island (also Aug. 1), Vermont, and Washington.

Recommended Citation: Marty Lederman, The fate of same-sex marriage in California after Perry, SCOTUSblog (Jun. 26, 2013, 11:32 PM),