Understanding standing: The Court’s Article III questions in the same-sex marriage cases (VII)
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?
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.
– 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.)or
– 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.]
Citation: Marty Lederman, Understanding standing: The Court’s Article III questions in the same-sex marriage cases (VII), SCOTUSblog (Jan. 21, 2013, 9:01 PM), http://www.scotusblog.com/2013/01/understanding-standing-the-courts-article-iii-questions-in-the-same-sex-marriage-cases-vii