California Marriage Case: It’s Not Over Yet

On Wednesday, the U.S. Supreme Court issued its ruling in Hollingsworth v. Perry, finding that the official proponents of California’s Proposition 8 (which defined marriage as the union of one man and one woman) lacked standing to defend the law in court. Throwing out the federal appellate court’s decision, the Supreme Court sent the case back to the appellate court with instructions to dismiss the case.

So what happens next? The short answer is more litigation.

Here are a few key points about the case:

• California state officials refused to defend the law in court.
• While one federal district court declared Proposition 8 unconstitutional, that ruling may not apply to the entire state of California.
• At a minimum, the original challengers of the law will now be able to marry. Whether this applies to more same-sex couples in California will be determined in the days to come.

In 2009, two same-sex couples who wanted to marry filed suit in federal district court against various California state officials, including the governor, the attorney general, and the Department of Public Health director. These officials refused to defend Proposition 8, so the district court allowed a group of private citizens recognized as the official proponents of Proposition 8 to defend the law. Ultimately, the district court ruled that Proposition 8 violated the federal equal protection and due process clauses and issued an injunction barring the defendants from applying or enforcing Proposition 8.

But the resulting injunction may be void because, as John Yoo commented, “the government never show[ed] up to defend the statute.… [T]he plaintiffs win, in essence, a default judgment.” If this is correct, then the district court’s order does not apply statewide. Yet immediately following the Supreme Court’s decision in Hollingsworth, California Governor Jerry Brown announced that the state Department of Public Health should order all county clerks to issue marriage licenses to same-sex couples “as soon as the Ninth Circuit confirms the stay is lifted.”

This may be premature. As some have noted, the California Constitution may prohibit this action. Article III, Section 3.5 of the California Constitution provides that state agencies may not “refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional.” This would presumably include the Department of Public Health and the county clerks who issue marriage licenses. A state appellate court has not yet ruled that Proposition 8 is unconstitutional, so a county clerk could potentially bring an action in state court arguing that issuing marriage licenses to same-sex couples violates Article III, Section 3.5.

Such a lawsuit would be similar to Crave v. Napolitano, a pending case brought by nine Immigration and Customs Enforcement (ICE) agents against ICE Director John Morton and Homeland Security Secretary Janet Napolitano. As Fox News has reported, the ICE agents are challenging a 2012 directive from Napolitano barring them from “starting deportation proceedings against unlawful immigrants who are not yet 30, were younger than 16 when they entered the country illegally, have lived here for five years, have graduated or are attending high school or have served in the military and have no felony convictions.”

The ICE agents claim that they are being forced to choose between violating the federal immigration law, which “requires them to initiate removal proceedings against anyone they detain,” or disobeying orders and thus facing disciplinary action. County clerks in California could soon face a similar choice: violate Proposition 8 or defy Governor Brown. However this pans out, the protracted legal battle over the definition of marriage in California is far from finished.