Proposition 8 lawyers David Boies and Ted Olson, along with their clients and West Hollywood and Los Angeles city officials and a crowd of thousands, rallied in West Hollywood last night to celebrate the Supreme Court’s rulings yesterday that overturned the federal Defense of Marriage Act and a finding on Prop 8 that could lead to the resumption of same-sex marriage in California.
Unfortunately, the demise of Prop 8 may not be a slam dunk. The foes of marriage equality are not done and the grindingly slow processes of the federal courts may give them a window of opportunity in which to delay the reinstatement of marriage rights in California. The 9th Circuit Court has already announced that due to procedural technicalities there will be at least a 25-day delay before marriage licenses can be issued to same-sex couples in the state — an announcement that essentially countermanded state Attorney General Kamala Harris’ order to county clerks to begin issuing the licenses within two days after the ruling.
Marriage-rights opponents will almost undoubtedly use the delay to litigate against overturning Prop 8:
“This is far from over, I can tell you,” said Chapman University law professor John Eastman, who supports the same-sex marriage ban.
The high court ruled ProtectMarriage, the sponsors of Proposition 8, lacked standing or the legal right to appeal the 2010 ruling by Chief U.S. District Judge Vaughn R. Walker striking down the 2008 ballot measure.
That means the only ruling left in place is Walker’s injunction, which ordered state officials to stop enforcing Proposition 8.
As gays and lesbians celebrated the decision, lawyers for the opposing side were already calculating how to frame an effort to limit the reach of Walker’s decision to the two same-sex couples who filed the lawsuit against Proposition 8.
District judges generally are supposed to apply injunctions narrowly to the parties before them unless they are deciding a class-action lawsuit or unless a broad order is the only way to protect the plaintiffs who sued. The Proposition 8 challenge was not filed as a class action.
Eastman said Proposition 8’s backers can use language from the court’s other gay marriage decision, overturning a key section of the federal Defense of Marriage Act, to argue Walker got the law wrong.
Eastman said the supporters of Proposition 8 could challenge the scope of Walker’s order in federal district court or in state court under a provision of the California Constitution that prevents state officers from refusing to follow laws without an order from an appeals court.
But Santa Clara University law professor Gerald Uelmen, an expert on the state constitution, said the provision cited by Eastman does not apply to constitutional amendments such as Proposition 8.
“I think they would be laughed out of state court,” Uelmen said.
He said he saw “no obstacle” in the California constitution to prevent Gov. Jerry Brown from refusing to enforce Proposition 8 statewide.
The hate groups that defended Prop 8 had no standing, according to the Supreme Court, because they could not prove that they had been harmed in any way by the marriages of same-sex couples. Who then might have standing? During oral arguments, Chief Justice John Roberts suggested that a county clerk who was morally offended by homosexuality might have a case. As Roberts undoubtedly knew, there is just such a clerk in Imperial County in the southwestern corner of the state:
…Roberts previously suggested that when it came to standing, he could see that “there might be people out there with their own personal standing, someone who performs marriages and would like that to remain open to everyone but would prefer not to perform same-sex marriages.” Though he didn’t say so explicitly, and though he did not repeat the idea in the text of the decision, he was implying that an earlier possible challenge by Imperial County clerk-recorder Chuck Storey to the Prop 8 ruling might have represented a valid case of legal standing.
Storey, for his part, has not said he would challenge a Supreme Court ruling, though attorney Robert Tyler of Advocates for Faith and Freedom, who represented Storey in 2011, told the [San Francisco] Chronicle back in March that Storey would be ready to bring a new challenge if need be.
Whatever opponents of marriage equality might do now to delay resumption of marriages in California will ultimately be a waste of their time and millions more of the taxpayers’ money. When it passed in 2008, Prop 8 became an amendment to the California state Constitution and, if the Supreme Court’s dismissal of the appeal proves not to be sufficient, the amendment will need to be repealed by another statewide vote.
The most recent Field Poll found that 61 percent of Californians support gay marriage. An initiative to repeal Prop 8 would likely succeed — and, depending on which ballot it appears, it might even help Democrats build on their majorities.
If the Prop 8 repeal were to appear on the November 2014 ballot, it would likely energize younger voters and liberals and drive them to the polls at a crucial time. That ballot will include both the midterm congressional races as well as statewide contests for governor and the rest. A surge of liberal base voters then would likely help Democrats in statewide races and help Dems unseat a Republican House member or two, which would reduce the number of Republicans in California’s 53-seat congressional delegation from 17 to 15 or fewer.