The U.S. Supreme Court fight over California’s Proposition 8, viewed by gay-rights advocates as a historic opportunity to establish same-sex marriage nationwide, may not even settle the issue in the state.
The justices, who probably will rule next month, signaled during the March 26 argument that they might sidestep the underlying constitutional questions and decide that the defenders of the 2008 gay-marriage ban lacked “standing,” or legal eligibility, to bring the case. That could leave the status of gay marriage in California in doubt, spawn new litigation and perhaps even prompt another ballot initiative.
A standing ruling might mean “a quick death for Prop 8,” said Vikram Amar, a constitutional law professor at the University of California Davis School of Law. “But it’s also quite possible -- maybe more likely -- that it will take some time before we know which couples, beyond the two couples who sued, would be able to get their licenses.”
The issue will loom large as the court nears its decision. It’s the first time the justices have considered whether gay couples have a constitutional right to marry. While a ruling limited to standing might mean months or even years of uncertainty, a declaration that Proposition 8 is unconstitutional could take effect in as little as 25 days, letting thousands of Californians marry this year.
More than 18,000 same-sex couples got marriage licenses in California in the five months between the state Supreme Court’s ruling that gay marriages were legal and the passage of Proposition 8, which effectively overturned that decision.
Ten states and the District of Columbia now allow same-sex marriages, with Delaware slated to join the list on July 1. Companies such as Apple Inc. (AAPL:US) and Morgan Stanley (MS:US) have urged the Supreme Court to back gay-marriage rights as has the Obama administration.
The standing issue stems from the 2008 decision by Jerry Brown, then California’s attorney general, not to defend Proposition 8 when two same-sex couples sued to overturn it. The initiative’s official sponsors, led by former state Senator Dennis Hollingsworth, took the lead in defending the measure.
The sponsors’ role took on new legal significance after U.S. District Judge Vaughn Walker declared Proposition 8 unconstitutional and barred state officials from enforcing it. The question then became whether the sponsors had the legal right to represent the state’s interests in an appeal before the 9th U.S. Circuit Court of Appeals.
Supreme Court precedent doesn’t provide a clear answer. Although generally it is the state’s prerogative to decide whether to appeal, and what arguments to make, the high court has let lawmakers represent a state in some contexts. In 1997, the court said it had “grave doubts” that sponsors of an Arizona ballot initiative could file an appeal.
During the March 26 argument, several members of the court, including Chief Justice John Roberts, questioned whether the Proposition 8 sponsors had standing. Justice Anthony Kennedy, the potential swing vote, called the issue “substantial.”
Should the high court rule that the sponsors lacked power to appeal, lawyers for the couples challenging Proposition 8 say the effect would be to legalize gay marriage across the state. They reason that the 9th Circuit ruling would be erased and Walker’s order would be reinstated.
“A win on standing would be a victory that would establish marriage equality and wipe out Prop 8,” said Theodore Boutrous, a Los Angeles lawyer with Gibson Dunn & Crutcher. “We would be very happy with that.”
Gay-marriage opponents counter that Walker’s statewide order would have to be set aside as well.
“We would certainly hope that the Supreme Court would vacate everything that had happened since the beginning of the case,” said Austin Nimocks, a lawyer on the team defending Proposition 8. “If there’s no standing, then there never was an actual case, meaning that there were no legitimate rulings.”
At most, Nimocks says, the two same-sex couples would be entitled to a so-called default judgment, letting them marry without affecting the rest of the state.
At the core of the dispute are questions about the constitutional power of federal judges. Some constitutional law professors, including Marty Lederman of Georgetown University Law Center in Washington, say Walker lacked power to issue a statewide ruling.
“District court judges generally do not have the power to issue injunctions that protect persons other than the parties before them,” Lederman wrote in a post on Scotusblog, which tracks the court.
Even so, it’s not clear anyone would be in position to contest the reach of Walker’s order, says Erwin Chemerinsky, dean of the University of California at Irvine School of Law. He says neither the sponsors of Proposition 8 nor any county official would likely have the legal right to do so.
“The defendants are not going to object to it, and I don’t see who else can do so,” Chemerinsky said in an e-mail.
The justices themselves probably won’t address the scope of Walker’s order, an issue that isn’t directly before them. The Supreme Court could instead return the case to the lower courts, letting the two sides spar there.
California officials might add more wrinkles. The state thus far has enforced Proposition 8, refusing to issue same-sex marriage licenses even while opposing the ballot initiative in court. Brown, now the governor, could change that approach after a Supreme Court ruling and direct county clerks begin issuing same-sex marriage licenses.
Should any of those clerks balk, the issue could become further muddled. One county clerk, Chuck Storey of Imperial County along the Mexican border, has already said in court papers that he isn’t sure whether he is bound by Walker’s ruling.
No matter how the Supreme Court rules, same-sex marriage in California may be inevitable. Californians back gay nuptials by almost 2-1, according to a Field Poll taken in February. Should the high court ruling uphold Proposition 8, or leave its status uncertain, gay-marriage supporters could put the issue back on the ballot in 2014.
Boutrous, the lawyer challenging Proposition 8, says he hopes a Supreme Court ruling on standing would prompt opponents of gay marriage to concede defeat.
“I’m hopeful that the Proposition 8 proponents will at some point come to their senses and say, ‘Enough is enough,’” Boutrous said. “It’s time for everyone to move onto something else and allow people to marry the person they love in California without more litigation.”
The case is Hollingsworth v. Perry, 12-144.
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