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For Marriage Advocates, a Day to CelebrateLawyers out in front in the fight for same-sex unions say nothing will come of threatened efforts to limit the effect of the Prop 8 ruling to just two counties.
2013-06-26 06:22:44 PM
SAN FRANCISCO — Technically, it's a punt. But to the lawyers trying to bring marriage equality to California, Wednesday's ruling on Proposition 8 felt like a touchdown.
"The Supreme Court stood up for the Constitution, stood up for the rights of our clients, and now we're going to celebrate with some weddings," said David Boies, co-lead counsel for two couples who challenged Prop 8 in federal court.
"It's a tremendously gratifying feeling," said San Francisco City Attorney Dennis Herrera at a City Hall news conference that doubled as a victory rally for jubilant gay-rights supporters.
Those may be strong words for a ruling that merely found Prop 8 campaign organizers had no standing to bring an appeal. But the decision leaves in place an injunction blocking Prop 8, which defined marriage as between a man and a woman, and it came with a companion decision smacking down the federal Defense of Marriage Act for creating "second-tier marriages." On this day, the conservative United States Supreme Court had same-sex marriage advocates promising equality in all 50 states by the end of the decade.
The proponents of Prop 8 said the celebration was extremely premature. Because the Supreme Court vacated the U.S. Court of Appeals for the Ninth Circuit's decision on the basis of standing, the injunction entered by U.S. District Judge Vaughn Walker in 2010 should apply only to the plaintiffs who brought the case, they said. Some law professors said Wednesday it could reasonably be argued that the injunction only applies to Alameda and Los Angeles counties, the legal entities that denied the couples marriage licenses. "I'm not saying it's a winning argument," said UC-Hastings civil procedure expert David Levine. "But it's not frivolous by any means."
Within hours of the decision, same-sex marriage advocates were mobilizing to head off that strategy. Governor Jerry Brown directed all 58 counties to begin issuing marriage licenses as soon as the U.S. Supreme Court's decision in Hollingsworth v. Perry is final in the Ninth Circuit. Attorney General Kamala Harris called on the Ninth Circuit to act immediately, rather than wait a few weeks for the Supreme Court to formally transmit its decision.
In the meantime, family lawyers who work with same-sex couples were answering a multitude of queries from clients and colleagues. Deborah Wald of San Francisco's Wald & Thorndal said the No. 1 question was whether same-sex couples who decide to marry and have kids can now skip adoption proceedings — the answer is no, if they want the nonbiological parent legally recognized when they travel to other states. But the DOMA decision, U.S. v. Windsor, will confer federal immigration status on binational couples, no matter where in the United States they choose to live. "So they can come home now," she said.
The DOMA decision also brings to a conclusion Ninth Circuit staff attorney Karen Golinski's quest to obtain federal health benefits for her spouse, Amy Cunninghis. "It's a tremendous sense of relief," said Golinski, "that Amy's on my plan and that can't be taken away from me."
NINE-YEAR LEGAL BATTLE
The Proposition 8 litigation has its roots in San Francisco's 2004 Winter of Love, when then-Mayor Gavin Newsom, with the support of Herrera's legal team, instructed city officials to start issuing marriage licenses to same-sex couples. The California Supreme Court would recognize a right to same-sex marriage under the California Constitution in 2008, but six months later voters passed Prop 8 by a 52-48 percent vote.
The next year two same-sex couples backed by the American Foundation for Equal Rights and a high-powered legal team from Gibson, Dunn & Crutcher and Boies, Schiller & Flexner sued to invalidate the measure. Following a trial that mesmerized San Francisco and much of the nation, Walker ruled Prop 8 served no rational purpose and violated gays and lesbians' Equal Protection and Due Process guarantees.
With Governor Arnold Schwarzenegger and then-Attorney General Brown staying on the sidelines during trial, Walker let groups who campaigned for Prop 8 intervene in its defense, and let the city of San Francisco come in as an additional plaintiff. Schwarzenegger, Brown and new AG Harris abandoned the case entirely on appeal, setting up the standing problem. The California Supreme Court found the proponents had standing under state law, and a Ninth Circuit panel led by Judge Stephen Reinhardt then mostly affirmed Walker's ruling.
On Wednesday, a 5-4 U.S. Supreme Court ruled the Prop 8 proponents never had Article III standing, regardless of the California Supreme Court's views. "We have no authority to decide this case on the merits, and neither did the Ninth Circuit," Chief Justice John Roberts wrote, vacating the decision and instructing the Ninth Circuit to dismiss for lack of jurisdiction.
In their briefs, Andrew Pugno of ProtectMarriage.com and Charles Cooper of Cooper & Kirk argued that if the court were to dismiss the case for lack of standing, Walker's "sweeping opinion and statewide injunction" should be limited to the four named plaintiffs.
Roberts did not address that issue in his opinion, nor did dissenters Antonin Scalia and Samuel Alito.
"While it is unfortunate that the court's ruling does not directly resolve questions about the scope of the trial court's order against Prop 8," Pugno said in a written statement, "we will continue to defend Prop 8 and seek its enforcement until such time as there is a binding statewide order that renders Prop 8 unenforceable."
UC-Hastings professor Levine, the author of California Civil Procedure, said it's pretty certain that res judicata would require Alameda and Los Angeles counties to observe Walker's injunction. But it's possible that the clerk of another county could say, "I wasn't a party to that case and I don't think I should follow it," Levine said. The clerk could say that the Windsor DOMA decision leaves the decision on same-sex marriage to states, "and the people of California have spoken through Proposition 8."
Boies and Herrera ridiculed such a scenario, though it was obvious each have given it some thought. "If some renegade clerk in some isolated county is doing something, there'll be a quick remedy for that," Boies said in a conference call with reporters. He noted that Roberts' opinion found Prop 8 proponents had demonstrated no injury, which he said would pose a standing challenge even at the district court level.
Herrera said a case that actually went against him — the 2004 California Supreme Court decision that said San Francisco overstepped by issuing marriage licenses on its own — makes clear that county clerks operate under the authority of the state when it comes to marriage. "I'm prepared to litigate immediately any effort to limit or delay" the issuing of licenses, he said Wednesday morning.
Brown released a legal opinion by AG Harris saying that "in the circumstances particular to the enforcement of the state's marriage laws," the injunction would cover the entire state.
Indeed, Harris called on the Ninth Circuit to lift its stay on Walker's ruling immediately, rather than wait the usual three or four weeks for the Supreme Court to send back the case. "The Ninth Circuit has within its power the ability to lift the stay before the judgment comes down" from the Supreme Court, she told reporters.
Assembly Speaker John Perez said at a news conference there will be "hell to pay" if any county clerk refuses to issue licenses to same-sex couples.
At City Hall, former Mayors Newsom and Willie Brown Jr. were among the officials who joined Herrera and his legal team to mark the imminent return of same-sex marriage to California. "I've described it as a journey," Newsom said. "Anyone who has gone out on a journey expects the unexpected. It's messy. It's not linear. It's curvilinear."
"We're excited about getting marriage equality back," added Herrera's chief deputy, Therese Stewart, who argued Prop 8 in state and federal court. "Even though it's a standing ruling, it's a victory."
Reporters Cheryl Miller and Max Taves contributed to this story. Contact Scott Graham at email@example.com.