Legal Commentary

Judge Walker denied a motion (by the proponents of Prop 8) to stay his judgment pending appeal. He ordered entry of the judgment, delayed until August 18, giving either the State or the Prop 8 proponents a chance to get  stay from either the Ninth Circuit, Circuit Justice Anthony Kennedy, or the full Supreme Court. Lyle Denniston breaks down the court's order.

Judge Walker concluded that the proponents had not made the necessary strong showing that they likely would succeed on their appeal, largely because it is not clear they have standing to appeal the judgment, an issue I previously raised. A unanimous Supreme Court in Arizonans for Official English v. Arizona expressed, in pure dicta, "grave doubts" as to whether the proponents of ballot initiatives have standing to defend the constitutionality of a challenged enactment (Michael Dorf criticizes the dicta and argues that initiative proponents should have standing to defend the law). The district court did not address (and the parties did not brief) the proponents' standing at the trial level, concluding only that the proponents had sufficient interest to intervene under FRCP 24. But the right to intervene as a defendant, which is based on a general "interest" at the trial level does not confer standing to appeal the adverse judgment, which requires some adverse harm beyond the ideological.

Nor could the proponents show any irreparable harm to them from the absence of a stay (and the issuance of marriage licenses to same-sex couples), other than their general objection to same-sex marriage. The proponents are not obligated to do anything by the injunction--the injunction runs only against state and local officials who grant licenses. And the court rejected the argument that marriages performed now (before appeals have been exhausted) would be under a "cloud of uncertainty"--are they valid? would they remain valid if the district court is reversed? While true, it is not an issue that affects the proponents, but only the same-sex couples who might seek to marry in the interim. So the proponents cannot raise the issue. The court also was swayed by representations from state officials that they opposed a stay, believed the inequality in state law should be eliminated immediately, and that issuing licenses in the interim would not impose an administrative burden. The court did not see a difference between the 18,000 marriage licenses issued to same sex couples between the California Supreme Court decision and the enactment of Prop 8 and any marriages that might be performed while the State remains under the district court's injunction, however long that injunction lasts.

I must admit to being somewhat surprised by the court's decision. First, the absence of a stay potentially speeds up the appellate process, particularly before SCOTUS, which might not be best for the plaintiffs. Any expediting of the appeals process affects an interesting argument by David Cohen. He suggests that SCOTUS never will hear the Prop 8 case, because Prop 8 likely will be repealed by ballot initiative in 2012, mooting the case before SCOTUS has a chance to decide the case. But David assumes a panel Ninth Circuit decision, an en banc Ninth Circuit decision, and full briefing before SCOTUS. If the absence of a stay speeds the appeals process up, that destroys this presumed timeline.

Second, Judge Walker seemed a bit blase about the possibility that thousands of new (same-sex) marriages would be performed under the injunction, only to have the injunction reversed and Prop 8 reinstated. This would leave us with thousands more grandfathered same-sex marriages, always an uncomfortable situation. While this two-tier reality was unavoidable following the California Supreme Court ruling (it was appropriate for the California Supreme Court's mandate to issue immediately), it is not unavoidable now. Or it would require invalidation of previously recognized marriages, an unequally uncomfortable (although doubtful) situation. Perhaps this simply reflects Judge Walker's confidence in the strength of his decision, in the proponent's potential lack of appellate standing, and in the weakness of their legal and factual arguments.

In the typical constitutional case, the court issues a negative injunction prohibiting the state from enforcing an unconstitutional law for the time being. There is no lasting harm from non-enforcement in the interim.  But this case involves a positive injunction ordering the State to affirmatively do something (issue marriage licenses to any couples who want them and otherwise qualify, regardless of the gender of the parties) that cannot easily be undone (or at least without further injuring some married couples or creating an odd marriage scheme) if the injunction is reversed and the law reinstated.

Anyway, nothing changes until August 18, by which time the proponents will have been able to go both to the Ninth Circuit and, if necessary, probably to Justice Kennedy. Stay tuned. And keep reminding students how much procedure matters to the vindication of constitutional rights.