« Federal judge strikes down Prop 8 | Main | Vermeule on "The Living Constitution" »

Thursday, August 05, 2010

Some questions on Perry

I am still working my way through the district court opinion in Perry, the Prop 8 case--a 3-hour flight should allow me to finish it. Looking at some media and legal-blog coverage this morning, I would pose some questions (I may have more when I finish reading):

1) Dale Carpenter calls this a "maximalist decision" that raises the stakes, because the whole issue of SSM now is in the record going forward. Carpenter argues that the "decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn’t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat."

I am not a believer in judicial minimalism in any event. But I wonder if minimalism is especially inappropriate for a district court judge. That is, I wonder whether district judges have a unique incentive to be maximalist--to handle the entire case at once and to build as complete a record as possible for the court of appeals (and Supreme Court) to review. The alternative, of course, is to have the case yoyoing through the system for years--narrow district court decision, narrow appellate decision plus remand, new district court decision on different issues, etc. That may explain why Judge Walker took the unusual step of holding a full trial on a permanent injunction, rather than resolving the case on a motion for preliminary injunction or summary judgment.

Second, everyone (in the press and on the legal blogs) is working on the belief that, assuming the Ninth Circuit affirms, SCOTUS will take this case. But there is a chance it won't. Yes, this was a federal (rather than state) constitutional decision. And it is a "great case," a high-profile case of substantial public importance (thus demanding SCOTUS review on Brad Snyder's theory).

But its effect is limited only to California and, ultimately when litigation is brought, the other states in the Ninth Circuit; it has effect beyond that only if the Full Faith and Credit provision of DOMA is held unconstitutional (and every state now must recognize California marriages). This is not an issue that could not wait for some further "percolation," to see where other circuits go on the issue. Maybe this would produce a circuit split, the usual situation in which SCOTUS gets involved. Or maybe we will see unanimity across circuits, which might affect how SCOTUS views the issue.

This is especially true given the case's procedural posture. The ban was established by popular referendum rather than ordinary legislation, so there was additional evidence of animus in the record. More importantly, the State of California refused to defend the constitutionality of the ban; that is being done by the private citizens groups that supported Prop 8. So there is perhaps a question of appellate standing to challenge the district court decision or whether this is the best case for SCOTUS to directly and finally address the constitutional issues.

Posted by Howard Wasserman on August 5, 2010 at 09:19 AM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Some questions on Perry:


I question the statement that "there was no federal law in play here; DOMA has absolutely nothing to do with this case and Judge Walker never talked about it."

Judge Walker noted DOMA and interstate recognition in the context of why domestic partnerships are not good enough. He said they didn't carry the same social meaning as marriage (paragraph 52), and then that they didn't earn interstate recognition except in a few states (paragraph 53). Specifically, he said "Domestic partners are not married under California law. California domestic partnerships may not be recognized in other states and are not recognized by the federal government."

I find that curious because even marriage, if SSM, is not recognized, under DOMA, by the federal government or by states that chose not to. So how is that a knock on domestic partnerships, unless the implicit assumption is that DOMA does not stand?

Next, within paragraph 53, he cites the two federal employee benefits cases, Gill and Golinski.

So that's a federal DOMA hook, aside from the broader point that the reasoning of the case essentially finds DOMA invalid as well.

Posted by: DOMA watcher | Aug 13, 2010 11:45:26 AM

Howard, I think we are reaching the point of diminishing returns here. But, first, I don't think the "uniformity" point has much traction. Under Walker's decision, many federal laws--the Equal Protection Clause, the Due Process Clause, Section 2 & 3 of the DOMA--have radically different meanings in the Ninth Circuit than elsewhere. The federal law does not need to be struck down for disuniformity to happen. And while Walker didn't talk about DOMA, I think everybody agrees that under his holding there is no way for the DOMA to survive, just as there is no way for the marriage laws in any of the other non-SSM states to survive. If the holding is affirmed, a DOJ defense of the DOMA in Ninth Circuit states would be just as frivolous as a defense by Montana of its marriage laws.

As for the size of the circuit issue, I really have nothing more to say. I think it is self-evident that striking down the marriage laws of nine states and two territories is more momentous than striking down the marriage laws of one or even three; though even that of a single state would probably be enough here. If we disagree, then we disagree.

Posted by: TJ | Aug 6, 2010 3:35:00 PM

There is no question that had there been a federal law at issue, SCOTUS takes the case and I never contested that. It is virtually automatic review when *any* circuit invalidates a federal law. Rick and I made this point in earlier comments. But the uniformity concerns are greater when federal law ceases to apply in an area of the country than when state law is different in some parts of the country, at least for a short time. By the way, there was no federal law in play here; DOMA has absolutely nothing to do with this case and Judge Walker never talked about it.

I also am not arguing that SCOTUS should not intervene; I simply was raising the question of whether review here would be as automatic as everyone thinks or whether, since state law is at issue, the Court might wait, let the issue percolate in the lower courts, and review a later case when either a split had developed or a consensus formed. You know, the way SCOTUS usually does things.

TJ probably is right that marriage laws are so important and the public interest in the case so high that SCOTUS review is necessary even as to a single case (a point I made in the original post). But that is about the issue, not the size of the circuit. The same argument would hold if the decision had come from the little old First Circuit.

Posted by: Howard Wasserman | Aug 6, 2010 7:14:46 AM

No, because I am pretty sure we can all agree (indeed, that is the whole reason opponents of Prop 8 brought this case in the first place) that marriage laws are more important than some random city ordinance. And if the Ninth Circuit invalidates say, speed limits across the entire Western United States (to pick a "common type of city ordinance"), I would say that the SCOTUS should intervene.

To mimic your argument, by your logic, the SCOTUS should not intervene even when the Ninth Circuit invalidates a federal law, since "[e]very other circuit and district court (covering 41 states and two more territories) are perfectly free to ignore the Ninth Circuit" and continue to apply that federal law. Besides which, of course, Judge Walker has invalidated a federal law--the DOMA.

Posted by: TJ | Aug 6, 2010 4:20:14 AM

By that logic, SCOTUS should take the case whenver the Ninth Circuit invalidates a state law--or even a common type of city ordinance from a major city. I am not sure that size alone makes a Ninth Circuit decision different from that of any other circuit.

Posted by: Howard Wasserman | Aug 5, 2010 6:26:37 PM


We can quibble about exactly how to calculate the size of the Ninth Circuit as well as how much deference other circuits and districts ought to give a sister circuit's decision. But the main point is that, by the time the Ninth Circuit affirms Judge Walker, it will have invalidated the marriage laws of nine states and two territories. Saying that has a rather different taste than "California plus a couple on the side" that your initial framing seemed to suggest.

Posted by: TJ | Aug 5, 2010 5:06:30 PM

The Ninth Circuit covers nine states and two territories. Every other circuit and district court (covering 41 states and two more territories) are perfectly free to ignore the Ninth Circuit.

Posted by: Howard Wasserman | Aug 5, 2010 4:18:27 PM

Howard, it is a bit summary to say that this case only affects California and the rest of the Ninth Circuit--which it will since the cert. question only comes up if the Ninth Circuit decides the case. The Ninth Circuit happens to encompass roughly 1/3 of the country.

Posted by: TJ | Aug 5, 2010 4:14:25 PM

Thanks, Larry. I momentarily forgot that the plaintiffs were the challengers to the law! Surely the Supreme Court will dismiss because of lack of standing to appeal, leaving the district court's opinion in place. After all, it's Article III we're talking about. And it's important to be consistent.

Posted by: Vladimir | Aug 5, 2010 2:15:01 PM


The question of standing to bring a case is different from the question of standing to appeal. The plaintiffs in Perry unquestionably had standing to sue given their inability to marry as a consequence of Proposition 8, but only the state has standing to appeal a judgment invalidating a state law even if others have intervened in the litigation in defense of the challenged law. See Diamond v. Charles, 476 U.S. 54 (1986). I suspect that there is reason to adopt a different rule for laws enacted by voter initiative on the theory that the voters, or at least the sponsors of the initiative, have their own interest in preserving the law separate that is distinct from the interests of elected officials, although the Court admittedly expressed some skepticism about such a theory in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). Still, Attorney General Brown's decision not to defend Proposition 8 seems a clear example of the conflict of interest between elected officials and the sponsors of a voter initiative which is, after all, part of the argument for the initiative process. For this reason, I suspect that the intervenors should be granted standing to appeal, though the matter is not free from doubt.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Aug 5, 2010 1:53:07 PM

Howard, could you spell out what you take to be the appellate standing issue in the case? I think that's really interesting. Mostly, I'm wondering why standing would be an issue on appeal, but not in the district court. After all, if the measure's proponents don't have standing on appeal, don't they lack standing ab initio? My understanding is that appellate standing issues really arise when a decision of a state court, which has looser standing rules than the feds, is heard in the U.S. Supreme Court. That's ASARCO. And there may be appellate standing issues if an agency is involved, with an appeal to the D.C. Circuit? But how could such an issue arise here?

Posted by: Vladimir | Aug 5, 2010 1:06:48 PM

I agree if this had been a federal statute, but is it also true if a *state* law is invalidated? I see your federal-respect point, but the interest in national uniformity is not as great as to state laws, perhaps suggesting less need for immediate review.

Posted by: Howard Wasserman | Aug 5, 2010 12:27:03 PM


My sense -- notwithstanding your good points about the usefulness, as a general matter, of "percolation" -- is that the Court would not wait here. A federal court has invalidated a state law, and when this happens, my sense is that the Court is strongly inclined (if only out of respect for the state's political process) to review that invalidation. (Had the case come out the *other* way, or if it comes out the other way in the Ninth Circuit, then I would be (have been) very surprised if the Court takes (took) it.) Best, R

Posted by: Rick Garnett | Aug 5, 2010 11:57:46 AM

The comments to this entry are closed.