Supreme Court practitioners, unlike the general public, know that a decision by the justices does not always mark the end of a case. That truism has been particularly obvious this summer.
In the wake of Fisher v. University of Texas-Austin, the university returns to the lower courts, where it must prove that its admissions policy's use of race passes the type of strict scrutiny articulated by Justice Anthony Kennedy in his majority opinion.
The battle over Baby Veronica, who is part Cherokee, continues in South Carolina following the ruling in Adoptive Couple v. Baby Girl. And the supporters of California's ban on same-sex marriage—Proposition 8—have turned to that state's supreme court to keep the ban in place after the justices held in Hollingsworth v. Perry that Prop 8 proponents lacked standing.
Supreme Court Brief checked in recently with Ted Boutrous of Gibson, Dunn & Crutcher, who worked with partner Ted Olson and David Boies of Boise Schiller & Flexner on the high court challenge to Prop 8. Now almost exactly a month after the Perry decision, there has been little rest for the litigators on both sides of the issue.
SCB: What have the last three to four weeks been like for your legal team?
Boutrous: It's interesting. You not only have lingering issues here in California, but you had weddings and an explosion of litigation around the country taking this to the next step. We're still thinking about what we do next.
These two cases (Perry and U.S. v. Windsor, striking down section 3 of the federal Defense of Marriage Act) really kick-started another wave of litigation. I think it's really great and it's in the tradition of civil rights battles. A whole new generation will be involved.
SCB: What was the immediate aftermath of the Supreme Court decision like for you and the legal team?
Boutrous: We were seeking to lift the Ninth Circuit's stay of Judge [Vaughn] Walker's injunction [against the enforcement of Prop 8]. I flew to California for a Wal-Mart hearing. It was in the same courtroom where we had the Prop 8 case. During the hearing, someone checked email and said it looked like the stay had been lifted. The hearing ended, the stay was lifted, and we rushed off to see our clients get married. It was the most joyous way to end a Supreme Court case that I've ever experienced. It was fantastic.
SCB: But the case continues.
Boutrous: You have two issues [pressed by Prop 8 proponents in the California Supreme Court]: who is in charge of marriage licensing policy and who is bound by Judge Walker's injunction.
We knew our opponents were going try to do something to prolong the fight, but we think their arguments are pretty lame. The California Supreme Court has held that marriage is a statewide power in California, governed by state officials. Those officials have ordered that Prop 8 cannot be applied across the state. The vast majority of clerks are following the order.
On the second issue, they make a baffling argument. The proponents and the San Diego clerk are arguing that somehow a state court is going to determine the scope of a federal injunction. That’s an issue for federal court. The California Supreme Court is not going to go anywhere near that issue. State officials are bound and all of their agents, including county clerks.
SCB: Isn't there also an issue raised by Prop 8 proponents that, under state law, the amendment remains in force until it has been found invalid by an appeals court? And since the U.S. Supreme Court vacated the Ninth Circuit decision invalidating Prop 8, the amendment is still valid?
Boutrous: That provision was meant for the situation where an administrative agency says. ‘We don't think a law is constitutional and won't enforce it.’ It makes sure there is an adjudication, so agencies don't make their own determinations. Their argument ignores the fact there is a federal court injunction that says you cannot enforce Prop 8. Here, we have a federal ruling that binds the litigants and, under the supremacy clause, it would trump any California law.
SCB: What role, if any, are you playing in the litigation in the California Supreme Court?
Boutrous: Right now we're just keeping a close eye on it. We're deferring to the attorney general and the governor. I think they're doing excellent work. Since it's the injunction we obtained, we are watching to see that nothing undermines it. We think the California Supreme Court is going to reject these petitions. We're going to make sure Judge Walker's injunction is enforced.
SCB: Do you see any possible way the case could return to the U.S. Supreme Court?
Boutrous: We looked at the ramifications of standing before we ever filed a case. We knew there was a chance this scenario would play out. Just because their arguments are so weak, I think it's going to end here in California.
Contact Marcia Coyle at firstname.lastname@example.org.