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Friday, August 13, 2010

Perry: Injunctions, stays, and appeals

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.

Posted by Howard Wasserman on August 13, 2010 at 08:16 AM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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Who believes that anyone who voted to ratify the 14th Amendment back in the 1860s thought they were voting to legalize same sex marriage? There is no discrimination against gays under Prop. 8. A gay man has the same right to marry a woman as a straight man.

Posted by: Peter Kauffner | Aug 18, 2010 2:03:15 AM

Kevin: Two things.

Diamond is distinguishable only if the Court (or some part of it) backs away from its dicta in Arizonans for Official English and holds (as Dorf would suggest) that the backers of a ballot measure are uniquely and differently situated than ordinary citizens, such that they not only can defend a law enacted through direct democracy as intervenors, but also as appellants.

I actually don't see a problem with the position that Ahnald, Moonbeam Jr., et al, have taken here. I appreciate the departmentalism concerns of independent constitutional interpretation by elected officials. But I also see a difference between an executive decision to ignore a law by not pursuing breakers of the law (i.e., what most states were doing with sodomy laws anyway prior to Lawrence) and ignoring a law by openly flouting it and enabling the violation of that law, with the long-standing consequences. The latter creates a host of administrative problems (such as those I described in my original post) that a prudent executive, even recognizing his power to enforce the Constitution as he sees it, might want to avoid. So the administratively sensible move is what we have here--enforce the law until the law has been authoritatively declared unenforceable.

Posted by: Howard Wasserman | Aug 13, 2010 10:31:13 PM


Thanks for saving me the trouble. But not e that technically, even defendants must have standing. Usually, this is satisfied by the fact that someone is seeking a remedy from them. This gives them sufficient injury and interest in the case.


Mike Dorf (in the post I linked to) suggests Dickerson v. United States (the case that reaffirmed the constitutional nature of Miranda) as another possibly relevant case. The United States was a party to the appeal because it continued to defend the validity of the conviction, but not on the grounds that the statute overrode Miranda. Needing someone to argue that, the Court appointed Paul Cassell as amicus to argue the Miranda/statute issue. But there the United States was defending; Cassell did not need to satisfy Art. III.

Another example I thought of today (while working on a completely different writing project) was the decision earlier this term in Reed Elvesier. The issue there was whether certain copyright lawsuit preconditions were jurisdictional. The parties had settled and neither party wanted to disturb the settlement on the ground that the lower courts lacked jurisdiction, so both sides agreed the precondition was not jurisdictional. So SCOTUS appointed an amicus to argue that it was.

This case seems to come closest to what is going on in Perry. The difference, I think, is that the dispute in Reed was over the lower court's very jurisdiction to take this case in the first instance--the parties could not agree not to challenge that. So SCOTUS did not demand someone with standing to push that issue. This would not be the case on an issue that does not go to the court's jurisdiction.

Posted by: Howard Wasserman | Aug 13, 2010 8:40:36 PM

The plaintiffs would not need to challenge the constitutionality of a state law that the state refused to defend, if the state also refused to enforce that law. This case is contorted because the state has continued to enforce a law that it believes is unconstitutional. In Chadha, neither of the parties that challenged the legislative veto as unconstitutional was responsible for vetoing or not vetoing. Here, by contrast, the state is responsible for the allegedly unconstitutional denial of marriage licenses that it wants the court to order it to issue.

Presumably the state officers want to be enjoined rather than to act in accord with their duty to uphold the Constitution as they see it because this better insulates them from political accountability. A refusal to enforce Proposition 8 may not have left the initiative proponents with a judicial remedy against the refusing state officers, but recall would be a more potent threat.

Posted by: Kevin C. Walsh | Aug 13, 2010 5:13:33 PM

This live controversy analysis must be misplaced. Otherwise the Plaintiffs would never get their chance to challenge the constitutionality of state laws if the state refused to defend them. If the intervenors never appeared the result would have been either a default judgment or a summary judgment with the same factual findings (minus the destruction of the Proponents poor case). It would not be appealable except by the state. So what are the proponents complaining about? The fact that they were allowed to intervene? It seems like only the Plaintiffs could appeal that, and they don't need to because the intervention was just beautiful theater for them.

Posted by: Andy | Aug 13, 2010 4:27:08 PM

Interestingly, the AG took the position in district court that the Article III controversy existed by virtue of the dispute between the plaintiffs and the intervening initiative proponents. [See Docket Entry 239]

The district court refused realignment on the grounds that the AG informed the court he would continue to enforce Proposition 8 unless and until he is ordered by a court to do otherwise. [See Docket Entry 319.] I'm not sure that such a duty trumps the obligation not to violate the Constitution--which by the AG's lights happened every time a marriage license was denied to same-sex couples.

The AG's Janus-faced position raises a legitimate question about the existence of a justiciable controversy, as the comment above notes. The closest cases I'm aware of on this issue are INS v. Chadha (live controversy despite agreement of INS and Chadha that one-house legislative veto was unconstitutional) and Moore v. Charlotte-Mecklenburg Board of Education (no live controversy because parties agreed that anti-busing statute was constitutional). Presumably the Boies-Olson team looked into this issue and satisfied themselves that this was close enough to Chadha, but if Chadha is distinguishable and Diamond v. Charles is not, then the B&O railroad could be knocked off its tracks. Are there other cases/analyses of this issue out there?

Posted by: Kevin C. Walsh | Aug 13, 2010 3:55:11 PM

Yes, the intervenor-defendants did not need standing in the trial court. The question, then, is the effect, if any, of the State defendants' refusal to defend. Was there a live case or controversy with no adversarial process? What if the proponents never showed up to intervene? Could the court still reach all of its factfindings and legal conclusions, based on the idea that the State defendants are still defendants, albeit passive ones?

That sounds odd, but if it is the right legal result, it's awful news for forging any public acceptance. It's one thing to say that the judicial process does trump "democratic will." It's another thing to say that the state's officials won't defend the state's laws. It's yet another thing to say that the trial is valid but that no appeal can happen. It just smells like a setup, and feeds the populist backlash against the legal system and political elites.

Posted by: DOMA watcher | Aug 13, 2010 2:36:05 PM

Let me just answer my own comment. Of course, the intervenors are defendants before the district court, so they don't have to have standing.

Posted by: David S. Cohen | Aug 13, 2010 12:26:01 PM

Howard - one thing that I'm having trouble processing (and admittedly haven't researched at all) is why intervenors have standing in the district court but not in the circuit court. Article III applies in both, so why would Judge Walker express doubts about their standing to appeal in an Article III court if they had standing before him, also an Article III court?

Posted by: David S. Cohen | Aug 13, 2010 12:17:53 PM

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