After years of waiting, we finally have two U.S. Supreme Court rulings on the legality of same-sex marriage. But neither ruling was the type of clear-cut decision that advocates on both sides of the issue were hoping for. KQED spoke to several experts about the details of the cases and how this could all play out.
The Supreme Court focused on the issue of standing in their ruling today on Prop. 8. In 2010, then-Gov. Arnold Schwarzenegger, state Attorney General Jerry Brown and Lt. Gov. Abel Maldonado refused to defend Prop. 8, leaving Imperial County as the only government entity willing to defend the proposition. But in 2011, the California Supreme Court ruled that Prop. 8 proponents had standing to defend the measure, which allowed them to appeal to the 9th U.S. Circuit Court of Appeals. Now the U.S. Supreme Court has ruled that Prop. 8 supporters did not have standing to appeal, Judge Vaughn Walker’s decision that Prop. 8 is unconstitutional currently stands.
So what’s standing?
UC Davis law professor Vik Amar explains:
“Standing means that you’re a party that belongs in court, and that we can trust that you’ll represent the interests of one position in a way that allows the court to reach the merits. For example, if I voted against Prop. 8, and I thought it was a bad deal, I couldn’t sue to challenge Prop. 8, even if it offended me, unless I’m a same-sex person, which I’m not. Standing makes sure we have the right parties in the case so that the courts aren’t shooting their mouths off and making new rulings just in abstract context.
“Usually we focus on whether the plaintiffs have standing. This was an unusual case because we were focusing on whether the defendants — the proponents of Prop. 8 — had standing, and the real question is whether the proponents are adequate representatives of the voters of the state of California. And the Supreme Court said that they are not. The Supreme Court said that they are private persons. They are not the same as public state officials.
“If the Brown administration had appealed Judge Walker’s decision to the 9th Circuit but said, ‘By the way, we agree with the plaintiff, the challengers,’ then the Supreme Court might have had a much harder time getting rid of this case. It might have had to reach the merits as it did in the Defense of Marriage Act case.”
When can same-sex marriages resume?
The Supreme Court gave the 9th Circuit Court 25 days before the appeals court has to lift the stay, or hold, on Walker’s ruling. This period comes directly from Supreme Court rules — whenever the high court makes a ruling, the loser has 25 days to file for a rehearing before anything can happen.
California also has to decide how they are going to interpret the ruling. Gov. Jerry Brown ordered the Department of Public Health – which oversees marriage licenses, birth and death certificates, and other such documents – to advise the 58 counties of California to commence same-sex marriages as soon as the stay is lifted. Each county has to decide how they will prepare.
Attorney General Kamala Harris in a speech asked the court to lift the stay quickly: “I am also calling on the 9th Circuit today to urge them in the strongest terms that they lift the stay and enforce the permanent injunction that Vaughn Walker outlined so that marriages can begin in California immediately.”
Will the legal struggle continue in California?
It’s unclear whether the lawsuits will continue. Someone with standing would need to challenge Walker’s ruling.
Amar believes that only a county clerk could do so: “The only scenario I envision is if a county clerk who feels that he should not be bound by Judge Walker’s order, and that he is not controllable by the governor, from some conservative county wants to refuse to issue marriage licenses and goes to court and says he shouldn’t be governed by any of this because he never had his day in court, he wasn’t in San Francisco defending Prop 8. That’s the only kind of individual or party left I could see to stand in the way.” Jane Schacter, professor of law at Stanford Law School, agrees that a county clerk refusal could restart the process: “What I think will happen at that point, it would not surprise me if in some more culturally conservative part of the state, a local county clerk says, ‘Well, I don’t think the governor had the power to order me to do this, I don’t think I’m bound by Judge Walker’s order, and therefore I’m not going to give you a license.’ At that point, a same-sex couple may go to court to try to get that license and we may be off to the races with further litigation. Now, this really is a law professor’s dream. Will that be in state court? Will that be in federal court? Will it be about the scope of Walker’s decision? Will it be about the scope of the governor’s authority to decide what to do in these circumstances? Any number of questions, but I think there is no question that a lot of same-sex couples in short order are going to start marrying again in California.”
Schacter also says that, while unlikely, Walker’s opinion could be open to interpretation: “The question is does Judge Walker’s opinion, which was issued not in a class action but a lawsuit involving two couples, does it bind and apply statewide to other couples who are not part of the litigation? I think the governor will aggressively take the position that the state was a party in the case, the state is not contesting the decision of Judge Walker, therefore Prop. 8 is no longer enforceable. But it wouldn’t surprise me if there’s further litigation in this. It might be that the proponents of Prop. 8 will try to get some clarification of what the scope is of Judge Walker’s opinion, and that won’t come from Judge Walker because he’s retired, but it will come from a different district judge. More likely I think Gov. Brown has ordered that marriage licenses be issued immediately. Once that starts happening, and I don’t see a constraint to it because there was a stay in place pending resolution of the Supreme Court’s appeal, and I think in short order that will be dissolved.”
John Eastman, a lawyer for the National Organization for Marriage, argues that the Supreme Court’s ruling on DOMA should leave the decision up to the states: “DOMA’s decision by the court, which specifically says that marriage policy is a core function of the states and that the federal government can’t interfere with that, strongly suggests that Judge Walker’s opinion in the Proposition 8 case, which is the last opinion standing in the Proposition 8 case right now, is invalid and has been superseded by that DOMA decision. Because what he did was strike down California’s effort that has its own merits policy, as reflected in Proposition 8. So I think we’ve got a lot of litigation still to go on whether that decision has to be overruled.”
Amar says this is unlikely, though: “A big question is whether anyone can validly raise this kind of argument in front of the 9th Circuit or the District Court. In light of today’s Perry ruling, Prop. 8 proponents have no right to have the 9th Circuit take another look at what Judge Walker did, or at the scope of his remedy either. And the governor and attorney general certainly are not going to ask the 9th Circuit to do anything other than allow Judge Walker’s order to go into effect. So unless the 9th Circuit decides, on its own, to re-examine Walker’s ruling, or unless someone else, like a county clerk, successfully intervenes to defend Proposition 8, and both of these are unlikely. I think the same-sex marriage train will leave the station here in California pretty soon. I think, and have argued for years, that this is the right result. California will join the same-sex marriage column of states largely because of the decisions of accountable, elected officials – the governor and the attorney general – rather than because of 9th Circuit judges.”
So if same-sex marriage is legal, what happens to domestic partnerships?
This is also unclear. David Levine, professor of law at UC Hastings College of the Law, says: “Presumably it will effectively change over to a marriage. When we had the interim period under the California Supreme Court, in effect that was what was going to happen. So, I think probably it’ll, in effect, automatically happen. But again that’s something that we’re going to have to get some direction. The state officials in Sacramento will be issuing some directives to the appropriate county officials. So, we’ll see. But I think, as a practical matter, it will turn into a marriage.”
What about federal areas, like immigration and taxes?
The Supreme Court’s ruling on the Defense of Marriage Act covers changes to federal issues, such as immigration and taxes.
The Supreme Court found that a portion of DOMA is unconstitutional because it violates equality principles by treating same-sex and heterosexual couples differently, even when states recognize same-sex couples and heterosexual couples the same, according to Amar.
While the Supreme Court can direct, it cannot legislate. Our experts agreed that the details will probably have to be handled by the Obama administration. Schacter says: “If section 3, as I believe, of DOMA is now unconstitutional in any respect, then there won’t be any reason for the Obama administration – which I think is inclined to recognize same-sex marriages – not to do that in the context of immigration and beyond. So, they’re going to have to go agency by agency and issue some regulations and public directives explaining how same-sex couples can achieve recognition from the federal government in these different areas.”