Cross-posted from Justia's Verdict.

This week offered quite the spectacle in Alabama. Relying on a recent ruling from United States District Court Judge Callie Granade, based in Mobile, that struck down the provision in the Alabama state constitution that prohibits recognition of same-sex marriage, many gay and lesbian couples around the state began getting marriage licenses. But other same-sex couples, mainly in more conservative counties, have been unable to obtain licenses because some state probate judges (who issue marriage licenses in that state) are continuing to abide by the state-law ban on same-sex marriage, notwithstanding Judge Granade's ruling that such discrimination violates the Fourteenth Amendment of the federal Constitution. And on Monday Judge Granade herself declined requests to hold probate judges who refused to issue same-sex licenses in contempt of her federal court and its orders. Meanwhile, the Chief Justice of the Alabama Supreme Court, Roy S. Moore, has been issuing statements about the limits of federal power that remind many observers of the days of George Wallace, and maybe even Jefferson Davis. So what is going on here? And do the state court judges who are continuing to enforce Alabama's discriminatory marriage-license regime have a legal leg to stand on? In the space below, I try to separate the strands of the tangle, and to highlight which legal questions have clear answers and which don't.

Let us first take the easy question of whether Justice Moore's broad-based challenge to federal judicial authority holds up. It does not. Justice Moore has said that the federal courts have no authority over the state-law institution of marriage and that federal district judges cannot require state judges to follow federal trial court rulings. These ambitious sentiments are certainly wrong if they are taken to mean that a federal court cannot award meaningful relief to plaintiffs who successfully challenge the application of state law to them. Federal district courts can vindicate the federal rights of federal plaintiffs, even if those rights involve the institution of marriage, and even if it is state judges (as is the case in Alabama's regime) who issue the marriage licenses that are being wrongfully and unequally withheld. So a federal district court has undeniable power to order state officials, including state judges, to provide victorious federal plaintiffs a remedy to redress their constitutional violations. Such power to adjudicate and vindicate federal rights is emphatically what federal courts are for. That's Constitutional Law I/Marbury v. Madison-kind of stuff.

The Limits on Federal District Court Remedial Reach

Why, then, did District Court Judge Granade not hold state court judges in contempt for withholding marriage licenses? After all, contempt of court-with its coercive sanctions-is usually what we invoke to ensure that people comply with federal court orders. (I should point out here that individuals who violate federal court orders are generally punishable for contempt even when the federal court orders themselves go too far and are later determined to be illegal.) The answer is that the formal remedy provided by Judge Granade-the technical order she issued after finding the Alabama same-sex marriage ban unconstitutional-did not, as she herself understood it, extend to all probate judges who interact with all same-sex couples throughout the state. While Judge Granade could and should hold in contempt any state official who refuses to recognize the marriage of the particular same-sex couple who brought the case in her court and won, Judge Granade was likely correct not to try to punish probate judges for withholding relief as to other same-sex couples.

The reason for this is that the weight of authority tends to suggest-as a leading casebook puts things-that "a [federal district] court can enjoin [a] defendant only with respect to the defendant's treatment of plaintiffs actually before the court, either individually or as part of a certified class" (emphasis added). Because there was no class certified in the case before Judge Granade-it was brought by one same-sex couple-Judge Granade's remedial authority is technically limited to the particular plaintiffs before her. Thus, even if her legal reasoning invalidating Alabama's same-sex marriage ban is valid-and even if it is likely that her interpretation of the federal Constitution will be upheld by the U.S. Supreme Court later this year-state court judges who continue to enforce the state-law ban as to other couples are likely not defying federal authority in a way that can be punished.

This also means that, as a technical matter, the problem (if one views remedial limitations as a problem, though many would view them as a virtue that makes federal judicial power less scary) won't necessarily be solved by trying to name every probate judge in Alabama as a party to a case in Judge Granade's docket. If a federal judge cannot order state judges to provide relief to anyone other than the federal plaintiffs before her, then same-sex couples throughout the state will not all necessarily benefit by extending Judge Granade's orders to cover additional defendants in additional cases involving additional named couples; the remedial limitation is defined by the identity of the plaintiffs, not the identity of the defendants.

So when Judge Granade yesterday afternoon ruled, in a second case, that one probate judge who had been refusing to issue same-sex marriage licenses must begin issuing them, her order was still limited to the particular plaintiffs (four same-sex couples) who were in her court asking for relief. As Judge Granade wrote yesterday: "If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage" (emphasis added).

Now it may well be that as more and more probate judges are instructed to issue licenses to named plaintiffs in more and more cases, all of the probate judges in the state will start issuing licenses to all same-sex couples who apply, regardless of whether those couples are victorious plaintiffs in any federal case. But that will not be because the state court judges are under a federal court order that obliges them to do so, but because they choose to do so in light of the decisional trend.

I should note that the conventional rule that I describe here-that a federal trial court's relief should normally be granted only to the actual plaintiffs in the case-does not forbid the court, even outside of a class action setting, from ordering relief that in fact goes beyond protecting the named plaintiffs and also protects other would-be plaintiffs, if full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants' interactions with other persons. (For example, in one case, a court was justified in ordering the police to stop enforcing a motorcycle helmet law overly aggressively as to all riders-and not just as to the plaintiffs-because highway patrol officers would have no way of distinguishing plaintiffs from non-plaintiffs before pulling someone over.) But in the present setting, full relief (i.e., marriage licenses and recognition) can be given to named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to named same-sex plaintiff couples requires allowing all same-sex couples in the state to marry, because absent such broad access to same-sex marriage, the named plaintiffs' marriages would continue to be subject to stigma. But I don't think that this stigma argument works, because if it did, then same-sex couples whose marriages are already recognized would have standing to challenge bans on same-sex marriage that are preventing others from marrying, and I don't think any federal court would recognize standing in such circumstances.

I should also point out that some federal judges believe that a district court can order government agencies to refrain from enforcing facially invalid laws or policies against anyone, and not just the plaintiffs before it. (Judge Granade's orders up until this point-limited as they are to the actual plaintiffs before her-give no indication that she is among them.) For example, (now-retired) United States District Court Judge Vaughn Walker (in San Francisco) is reported to have embraced this view when he issued an order whose plain language directed state officials to stop enforcing California's same-sex marriage ban, Proposition 8, against all same-sex couples, and not just the two couples who sued in his court. Judge Walker's apparent position-which was never fully tested because both the Governor and Attorney General of California chose not to try to continue enforcing Proposition 8-was in (unexplained) tension with current Ninth Circuit law, which embraces the more dominant view, described above, to the effect that the remedy must ordinarily be tailored to the plaintiffs only. The Ninth Circuit approach is supported by most (but not all) of the statements the Supreme Court has made on the topic, but candor compels the acknowledgement that the law in this area is not really settled and could definitely benefit from high Court attention and clarification.

Does Restricting a Federal District Court's Reach to the Plaintiffs Before it Make Sense?

Why might it be sensible for a federal district court judge not to be able to issue relief to anyone other than the plaintiffs in the case before it? Because, under the judicial system we have chosen, we have decided that federal district court opinions and decisions should, as a matter of governing precedent, have no binding effect on any other judges, even other federal judges located within the same district. This situation is to be contrasted with a ruling by the regional federal Court of Appeals or the United States Supreme Court. Once either of those courts has held Alabama's law invalid (and neither has yet-the Supreme Court chose not to block Judge Granade's ruling, but it won't decide the merits of the same-sex marriage constitutional question until later this year, at the earliest), then all judges, state and federal, within the state should surely obey that ruling, because the federal appellate court (whether it is the Eleventh Circuit or the Supreme Court) would have fashioned federal law that is supreme and applicable throughout the state. This is true even though state judges' rulings are not appealable to the Eleventh Circuit, insofar as all federal district judges in the circuit (who are bound by circuit precedent) would have no choice but to give injunctive relief to any same-sex couple who subsequently filed suit. Under those circumstances, it would be an utter waste of time (and perhaps a due process violation) for a state court judge not to give a license to someone who undeniably could get one by filing a federal suit anywhere in the state. Whether contempt sanctions are applicable or not, no judge or other state official would be justified in continuing to enforce a state law that a federal appellate court governing that state has held to be invalid.

But a ruling by a district court judge like Judge Granade has no such effect. Just because she ruled that Alabama's law violates the federal Constitution does not mean that other federal judges in Alabama would so rule if other same-sex couples filed suit in their courts. Her ruling is not binding precedent on them. Importantly, not all same-sex couples could properly sue in Judge Granade's district, and even if they did, other district court judges in that district to whom a new case might be assigned might rule differently on Alabama's ban on same-sex marriage. So Judge Granade's ruling-unlike one from the Eleventh Circuit or the Supreme Court-does not inevitably provide relief to any would-be federal-plaintiff same-sex couple in the state.

Perhaps an example will help drive home the point I'm making. Imagine that public universities throughout Alabama, pursuant to a state law policy, take race of applicants into account in a measured way in the admissions process, in order to assemble a diverse student body. Suppose a single unsuccessful applicant to a single public college in the state sues in federal court, bringing a facial challenge to the state's affirmative action policy on the ground that any use of race violates the Fourteenth Amendment. And suppose the district judge in that case rules (wrongly, to my mind, but not implausibly as a prediction of where the Supreme Court is headed) that all consideration of race is indeed barred by the Fourteenth Amendment. Could that judge apply her ruling to all the public universities in the state, and order all of the them (under pain of contempt) to refrain from considering race at all as they process the hundreds of of thousands of applications they receive each year, even though many other federal and state judges in the state would disagree with her interpretation of the Fourteenth Amendment but might never have a chance to hear a case if her ruling were allowed to shut down statewide use of the policy? I think such remedial power by a single judge would raise many problems, and for that reason, if and when the Court clarifies district court remedial power, it might embrace what I have described here as the mildly dominant view limiting remedial authority to actual plaintiffs.

But, a reader might wonder, isn't there a difference between the affirmative-action hypothetical I posit and the same-sex marriage setting insofar as affirmative-action limitations at the high Court are still a matter of debate, while there is no longer any real doubt about whether the Supreme Court this summer will hold that all state-law discrimination against same-sex couples in the marriage arena is unconstitutional? Perhaps this prediction is quite sound, and state court judges would be justified if they chose to issue licenses on that basis, but I am not entirely sure that state court judges are required, as a matter of supreme federal law, to act on it now. All judges have a legal obligation to follow binding precedent from a higher court once it is handed down, but there may be no legal obligation-enforceable by contempt or otherwise-on lower court judges to see the writing on the wall.

Part One in a Two-Part Series on What Should Happen to Same-Sex Marriage in California after Hollingsworth v. Perry. Cross-posted from Justia's Verdict.

Last month's ruling by the U.S. Supreme Court that the proponents of California's voter-enacted ban on same-sex marriage, Proposition 8, lacked standing to represent the voters of the State even when the Attorney General and Governor declined to defend, combined with the decision by the U.S. Court of Appeals for the Ninth Circuit to lift the stay on trial judge Vaughn Walker's order blocking enforcement of the ban, effectively killed Proposition 8. But like a chicken with its head cut off, Proposition 8 is trying to act alive, even though it has no real chance of being revived. In the space below, Part One of a Two-Part series on the future of same-sex marriage in California, I analyze the latest developments in the struggle, especially the petition filed last week by the initiative's proponents in the California Supreme Court asking it to stop the issuance of same-sex marriage licenses. In Part Two of the series, scheduled to run August 2, 2013, I will sketch out what I think Californians should do to properly and finally lay Proposition 8 fully to rest.

A Quick Recap of the Action So Far

Let us begin by reviewing key aspects of the story to date: California voters passed Proposition 8 in 2008. In 2009, two same-sex couples (one from LA County and one from Alameda County) brought suit in federal court in San Francisco against, among others, the County Clerks in their respective counties, the Governor, the Attorney General and the State Registrar, alleging that Proposition 8 violated the federal Constitution. None of the named defendants defended on the merits-the Governor and Attorney General actually expressed agreement with the challengers-and federal trial court Judge Walker allowed the proponents (i.e., the measure's drafters/signature gatherers) to intervene to defend Proposition 8. In 2010, Judge Walker found that Proposition 8 violated the 14th Amendment to the U.S. Constitution, and issued an order preventing all defendants, and any persons under their "control or supervision," from "applying or enforcing" Proposition 8. The proponents appealed to the Ninth Circuit, which promptly put a stay (hold) on Judge Walker's order, and then later (in 2012) affirmed Walker's ruling that Proposition 8 violates the federal Constitution (but left the stay intact pending possible Supreme Court review.)

Last month, the Supreme Court ruled that the proponents never had "standing" in federal court to represent the voters, and thus that they had no business appealing Judge Walker's ruling to either the Ninth Circuit or the Supreme Court. Accordingly, the Supreme Court vacated (erased) the Ninth Circuit's constitutional ruling, but the high Court left intact Judge Walker's decision (since the two same-sex couples clearly had to have the ability to challenge Proposition 8 in the trial court.) After this, the Ninth Circuit quickly lifted its stay on Judge Walker's order, and Governor Jerry Brown and Attorney General Kamala Harris instructed all county clerks to ignore Proposition 8 and issue same-sex marriage licenses. According to numerous press accounts, Clerks throughout the state have been doing exactly that since early July.

Last Week's Request by the Proponents to the California Supreme Court

On July 11, the proponents asked the California Supreme Court to order all County Clerks to stop issuing same-sex marriage licenses. Their papers argue that Judge Walker's ruling-now being implemented-cannot legally apply, and does not apply, to anyone other than the two same-sex couples who filed suit. And since these two couples already have their licenses (they were among the first to be married after the Ninth Circuit lifted the stay), Judge Walker's order has done all that it was intended to do, and all it permissibly could do. The proponents argue that since Judge Walker's order is no longer relevant to any of the defendants or to any other same-sex California couples who wish to marry, County Clerks who continue to issue same-sex marriage licenses are violating Proposition 8, and are also violating state law principles that prevents any executive agency from failing to enforce a state law on the ground that it is unconstitutional unless any court is ordering the agency to do so, or unless an appellate court somewhere has invalidated the state law. Because the Ninth Circuit ruling striking down Proposition 8 was erased, the latter exception does not apply. And, again, because (the proponents say) Judge Walker's order is now completely satisfied, the former exception does not apply either.

To summarize, the proponents' request is based on three key assertions: (1) Judge Walker's order should not, as a matter of federal remedies law, have any effect beyond two couples who sued; (2) Judge Walker's order does not apply to any defendant any longer; (3) if Judge Walker's order is understood as being limited in this way, Clerks who ignore Proposition 8 are violating state law.

The Big Reason Proponents Are Unlikely to Succeed: Their Petition Rests on Contested Issues of Federal, Rather than State, Law

I do not think the California Supreme Court is likely to accept the proponents' invitation to stop same-sex marriage licenses from being issued. On Monday of this week, the court indicated it would not stop the marriages right away, but the full briefing schedule indicates that the court will not make a final decision on the proponents' petition until August at the earliest. It is telling, though, that the court did not enter an order directing Clerks to stop issuing same-sex marriage licenses right now; if the court thought there was ultimately any significant chance it would grant the relief the proponents seek (ordering the enforcement of Proposition 8), the California Justices probably would have granted an immediate injunction, to reduce the number of same-sex marriages whose validity the court might have to deal with after all is said and done.

Why would the California Supreme Court be inclined to stay out of this matter? For starters, the California Supreme Court's review here is discretionary, not mandatory, and I expect the Justices will look for plausible, prudential reasons to stay out of, rather than excuses to jump into, a situation in which the Proposition 8 likely no longer reflects the desires of the California electorate. (A recent LA Times poll suggested same-sex marriage rights are favored by California registered voters by a margin of around 56-38.) To be sure, the Proposition 8 proponents are arguing that more is at stake here than simply same-sex marriage; the proponents claim that state officials are flouting the rule of law by refusing to comply with Proposition 8 until an appellate court has invalidated it on the merits. But the proponents' claim that the California Supreme Court can and should address this alleged lawlessness by state officials is open to some serious complexity and significant doubt.

The sponsors may be right (and I have written about this before) in saying that Judge Walker should not, as a matter of federal remedies law, have issued an order that granted relief beyond the two couples who actually sued. That is to say, the proponents may be right about the first of the three assertions I listed above. As I explained in an earlier column:

Under [a very plausible reading of the relevant cases,] the law of the Ninth Circuit (and perhaps also that of the Supreme Court) [suggests that] a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants' interactions with other persons. In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs [, the two couples who sued,] without ordering the defendants to give licenses to anyone else.

But even if the proponents are correct about this first point under federal remedies law (and some may argue that the Ninth Circuit cases don't mean what I think they do), the bigger problem for the proponents is their second assertion-that Judge Walker's order in fact does not go beyond the named plaintiffs. For whether he was right or wrong to do so, Judge Walker wrote and entered an order that-read most straightforwardly-does go beyond those two couples, to grant same-sex marriage rights to other couples in the State as well. This is most clear when it comes to the Clerks of Los Angeles and Alameda counties; Judge Walker's order directs them, in broad terms, not to enforce Proposition 8. Period. Whether Judge Walker should have added a phrase "as to the named plaintiffs," to this part of order, he did not. The most natural reading of the order is that these two defendant Clerks, as least, are simply not supposed to enforce Proposition 8.

The proponents' best argument (although they don't quite frame it this way), is that because it would be likely unlawful under federal law for Judge Walker to have granted relief to persons who weren't plaintiffs, we should in effect add the words "as to the named plaintiffs" to his directive to the LA and Alameda Clerks. In other words, because Judge Walker nowhere explicitly said his order should apply to non-plaintiffs, and because he doesn't have the power to provide a remedy to non-plaintiffs, we should read his order as if he agreed with the proponents that his order is in fact limited.

But I think it would be difficult, and perhaps violative of federalism principles, for the California Supreme Court to effectively add limiting words to Judge Walker's order. Ordinarily, interpreting or changing the scope of a federal court order is a matter for federal courts-not state courts-to undertake. And because the proponents' argument about the permissible power of a federal court to protect non-plaintiffs is itself a point of some contention under federal law, I don't think the California Supreme Court can easily agree with the proponents in resolving this federal question; questions about the scope of federal district court powers are not the kind the California Supreme Court exists to decide.

A federal court would be the more natural place, in the first instance, to argue that Judge Walker's order, as written, exceeds federal trial court powers and, for that reason, should be construed as narrowly as possible. After such guidance from the federal courts, the proponents could then make their state law claims in the California Supreme Court. But the proponents don't have standing in federal court to raise such an argument-that is what the U.S. Supreme Court held in Hollingsworth. The proponents filed last week's request in the State Supreme Court in part because California courts don't have the same rigid standing requirements, but that doesn't mean that the state court is going to be interested in resolving these thorny questions of what the federal court order could, and does, mean. (And notice that the Ninth Circuit could have narrowed Judge Walker's order to the named plaintiffs only before lifting the stay, but apparently chose to leave Judge Walker's edict completely intact.)

The Questions of State Law Raised by the Proponents' Request

It is true that, as to the other 56 County Clerks-who were not named in the federal lawsuit in Judge Walker's court-there is a question whether these Clerks are under the "control or supervision" of one of the defendants who is directly subject to Judge Walker's order, most plausibly the Governor or the State Registrar. And the question of whether County Clerks are under the control or supervision of the Governor or the State Registrar might very well be a question of state law as to which the California Supreme Court may someday want to provide a definitive answer. In a similar vein, the California Supreme Court may someday also want to answer the question whether a County Clerk who is not subject to a court order or to the control of the Governor or Registrar can refuse to enforce a state law on the ground that it is unconstitutional. (This is matter addressed by the third contention I identified in the proponents' papers.) But the California Supreme Court might feel that what is meant by "control or supervision," as the term is used in Judge Walker's order, is not determined by state law, but rather by what Judge Walker intended, in which case we are back to the problem of a state court trying to interpret and perhaps limit the effect of a federal court order.

Moreover, and more important, even if the 56 non-named County Clerks are not covered by Judge Walker's order (and thus should not, under the proponents' contested reading of state law, be ignoring Proposition 8), same-sex couples can go to LA or Alameda counties for marriage licenses (since, as discussed above, these two clerks at least would seem clearly to be covered by Walker's order.) And the California Supreme Court may rightly say to itself: "If Proposition 8 is going to die anyway-because the LA and Alameda County Clerks are required to issue same-sex marriage licenses-then there is no practical import of resolving big questions of state law, concerning the independence of County Clerks and the requirement to follow a state law until the law has been invalidated by an appellate court, in this setting. Better, perhaps, to wait for a case that is less politically charged, and one in which the resolution of these state law questions will affect the real-world state of affairs more."

Thus, although the California Supreme Court has asked the Attorney General to file full briefs explaining why the court should reject the proponents' requests for relief, and although the court will consider the matter carefully and likely not act in a final way on the proponents' petition until next month at the earliest, I don't expect the proponents to make any real headway. The federalism issues presented by a state court trying to read a federal court order in a particular way in order to justify reaching state law issues are, I think, too daunting. And on that basis the California Supremes will probably let things continue to run the course they are on-with same-sex marriage licenses continuing to be issued.

In Part Two of this series, I will explain why, even if the California Supreme Court stays out, and even if same-sex marriages continue in California indefinitely, there is virtue in the voters of the State formally repealing the no-longer-favored measure. And I will analyze how that could come about without great cost or delay.

Cross-posted from Justia's Verdict.

In the column below, I analyze a ruling last week by a Mississippi federal district judge granting a preliminary injunction in a case involving a controversial Mississippi law regulating abortion clinics.  The case raises important questions about abortion access, and also about the power of federal district court judges.

Some Background on the Mississippi Law and the District Court's Action

The law in question, Mississippi House Bill 1390, requires that all physicians in the state who work with abortion clinics meet certain requirements.  In particular, all Mississippi abortion physicians need be board-certified in obstetrics and gynecology and, in addition, must enjoy admitting and staff privileges at a local hospital.

Currently, the Jackson Women's Health Organization ("the Clinic") is the only abortion clinic located in Mississippi, and the two doctors there who offer the majority of the Clinic's abortions are not authorized to admit patients, nor do they have staff privileges, at any local hospital; in order to comply with the Act, they have since applied for such prerogatives.

The Mississippi law is controversial both politically and legally, largely because if the Clinic's abortion specialists are not able to obtain local hospital admission and staff privileges, then most women in Mississippi who seek abortions would have to leave the state, often at a significant cost of time and money, to obtain abortion services.  If this turns out to be so, then arguably the Mississippi law would impose an "undue"-and thus an unconstitutional-burden on women patients, according to the Supreme Court's 1992 watershed Planned Parenthood v. Casey ruling.

But an ultimate determination of the Mississippi law's constitutionality is far down the road.  For now, the Clinic filed suit to obtain protection from the federal district court to allow the physicians at the Clinic to continue to provide abortions even as they seek to satisfy the law's requirements.  As the District Court judge observed, "Plaintiffs' [] primary contention is that they face the uncertainty of criminal or civil prosecution for operating the Clinic out of compliance with state law."

The defendant state officials have said that they have no present plans to prosecute the plaintiffs for non-compliance, and have promised not to do so until all the administrative proceedings-during which the physicians are seeking to comply with the law-have run their course.  But the defendants have declined to promise that they will not, sometime down the road, choose to prosecute the plaintiffs for operating the Clinic during the period in which Plaintiffs seek, but do not yet enjoy, admitting and staff privileges.

Without resolving the underlying merits of the lawsuit (i.e., the constitutional questions it raises, such as whether Mississippi's law violates the undue burden standard, either on the law's face or as applied to the Clinic), the federal district court judge understandably wanted to protect the Clinic physicians from suffering consequences from the actions that they are undertaking now, while they seek to obtain the privileges that would allow them to comply with the law, and while the law's constitutionality has not been resolved one way or another.

Accordingly, the federal district court issued an order that that required the Plaintiffs "to continue to seek admitting privileges-as they said they would-[but that also] enjoin[ed] Defendants from exposing Plaintiffs to criminal or civil penalties for continued operation."  Held the district court:  "The Act will be allowed to take effect, but Plaintiffs will not be subject to the risk of criminal or civil penalties at this time or in the future for operating without the relevant privileges during the administrative process." (Emphasis added.)

Can the District Court Really Protect the Plaintiffs From Subsequent Prosecution?

The district court's course of action seems like a reasonable way to proceed until more is known about whether the two physicians at issue will obtain the required privileges, and/or whether the law will be deemed unconstitutional after more inquiry.  But what if a higher court-the U.S. Court of Appeals for the Eleventh Circuit, or the U.S. Supreme Court-finds that the law is plainly constitutional, such that the district court made a mistake in blocking its enforcement in any way?

If this were to happen, then the higher federal court would lift the district court's injunction, going forward.  But what about the plaintiffs' actions that were taken during the time when the injunction was in effect?  Are the plaintiffs still protected from prosecution by the district court's order?

Put another way, if a district court tells you that the actions you are about to take are immune from prosecution, should you be able to rely on that immunity, even if it turns out that the district judge provided it based on a flawed legal premise?  After all, if you can't trust a district court judge's word about when you are safe, whose word can you trust?

It turns out that the Supreme Court precedent on this question is far from clear, and that at least one liberal lion of the Court has suggested that reliance by a party on immunity that is wrongfully accorded to it by a district court may be foolhardy.

Of course, in light of such reliance, the prosecution may choose never to prosecute, but some intimations from members of the high Court suggest that it would be the prosecution's (and perhaps ultimately the jury's) call. These intimations thus suggest that constitutional notions of due process and fairness don't foreclose prosecution.

A Key High Court Discussion of This Issue in Edgar v. MITE Corp.

Precisely this kind of question arose, albeit not in the abortion setting, thirty years ago in the 1982 Edgar v. MITE case, which involved an Illinois statute that tried to regulate corporate takeover offers. MITE Corp. challenged the constitutionality of the Illinois statute on the ground that the statute unduly burdened interstate commerce, and was thus preempted by federal law.

On February 2, 1979, MITE obtained a temporary injunction from a federal district court ordering the Illinois Secretary of State to refrain from invoking the provisions of the Illinois statute to block MITE's intended takeover of another company.  Accordingly, on February 5, in violation of the provisions of the Illinois statute and in seeming reliance on this injunction, MITE published its takeover offer in The Wall Street Journal.

On February 9, 1979, the district court entered a judgment declaring the Illinois statute unconstitutional; as a result, the court enjoined for the indefinite future the Secretary of State from enforcing the Illinois statute against MITE.

The U.S. Court of Appeals for the Seventh Circuit then affirmed the district court's ruling, such that the injunction against enforcement going forward remained intact.

However, the Illinois Secretary of State sought review of the constitutionality of the statute in the U.S. Supreme Court, and the Court granted review. Some members of the Court addressed the issue of the immunity provided (or not provided) by lower-court injunctions only within a larger debate about whether the case was moot.  If moot, the case would, of course, have to be dismissed, as there would be no live legal issue.

Justice Stevens wrote separately, stressing that, in his view, the case was not moot because Illinois might still prosecute MITE for conduct that had been undertaken while the preliminary injunction was in effect. (Justice Stevens's view in this case was surprising, given his "liberal" reputation on the Court during his last two decades there.)

The late Justice Thurgood Marshall, joined by the late Justice William Brennan, strongly disagreed. They argued that the case was in fact moot because there was no longer a takeover offer on the table, and that a federal court injunction-even if it is a preliminary injunction-ought to be understood as conferring complete immunity for acts undertaken while the injunction was in effect.

Justice Marshall's approach would give federal judges the power to grant complete immunity from punitive sanctions to persons who desire to test the constitutionality of a state statute.

But Justice Stevens rejected this approach, contending that (regardless of the wisdom of this rule) "federal judges have no power to grant such blanket dispensation from the requirements of [what turn out to be] valid legislative enactments."

The Problem with Justice Stevens's Position: How Far Does Its Logic Go?

Several aspects of Justice Stevens's position are not entirely clear. First, Justice Stevens says at various points that federal courts lack the power to block the prosecution of a state statute found to be valid.  Was his view inspired only by federalism worries (as some of his broader language suggests), or do federal courts also lack the power to block prosecutions under a federal statute?

Second, Justice Stevens does not limit his argument to preliminary injunctions-which means that it might also apply to permanent injunctions and declarations of unconstitutionality issued by the district court after full-blown trials and other adjudications. Stevens bluntly opines that a federal declaration of unconstitutionality "reflects [no more than] the opinion of the federal court that the statute cannot be enforced."

As a result, Justice Stevens would, at some level, leave plaintiffs in the very Catch-22 that they sought to avoid by seeking judicial help in the first place: Give up an activity that they believe (and a district court agrees) is constitutionally protected, or risk criminal prosecution down the road if the district court's ruling on its constitutionality is reversed.

This Catch-22 would continue until the Supreme Court decisively affirmed the issuance of the injunction (or denied review)-and indeed, might even continue through the entire statute of limitations period!

After all, what if the Court overruled its own precedent and later held the statute constitutional?  Under Justice Stevens's logic, perhaps backward-looking prosecutions could be brought even then.

The Problem With Justice Marshall's Position: Where Do Courts Get The Power to Immunize Conduct Proscribed by a Valid Criminal Statute?

On the other hand, Justice Marshall never really answers Justice Stevens's complaint: Where do federal courts get the power, in the first place, to immunize illegal conduct under a statute that is eventually validated as being good law?

Congress could probably give the federal courts this power directly, on the ground that it is "necessary and proper" to facilitate access to the courts.  Or, Congress could make reliance on an injunction a complete defense to federal crimes (though not to state crimes). But Congress hasn't availed itself of either option. (Many states, in contrast, have followed the Model Penal Code to create a defense to state crimes when the defendant has relied on a judicial ruling.)

So where do federal courts get the power to confer this immunity, if not from Congress? If the power comes from anywhere, it must come directly from the Constitution itself.

A Possible Constitutional Source for Federal Courts' Power to Immunize

One possible constitutional source for federal courts' power to immunize is the Due Process Clauses of the Fifth and Fourteenth Amendments.  Due process means, among other things, that you can't be prosecuted unless you've been provided adequate notice that your actions are criminal.  And a contrary judicial ruling, upon which you relied, could undermine any claim that you did get proper notice.

The Supreme Court has seemed sensitive to this concern when it has reversed its own earlier position on a particular act's criminality.  In cases such as James v. United States, it has held that Due Process means that the feds cannot punish someone for doing an act that the Court had earlier held, in other cases, to be non-criminal.

One could imagine applying this logic to say that when a defendant has obtained a permanent injunction against enforcement of a statute, he cannot be punished for violating that statute. Indeed, reliance on a permanent injunction that you yourself obtained may be thought to be more reasonable than reliance on an early case involving other parties. (Reliance on a preliminary injunction is much trickier, since the injunction itself does not make any final determination of constitutionality-finding, at most, only a "likelihood" of success on the merits.)

But James and similar precedents could also be limited, on several grounds, to exclude their application to lower federal court injunctions.  First, it's important to note that the Supreme Court, while allowing reliance on its own rulings, has been loath to allow reliance on lower federal court rulings.

To cite one example from another setting, in a case decided a few years ago, Bowles v. Russell, a district court judge mistakenly told a habeas corpus petitioner that he had 17 days to file a notice of appeal, when the statute provided for a 14-day window.  The petitioner filed the appeal on day 16, inside the time period that had been told to him by the district court but outside the 14-day time period provided for in the statute, and the Supreme Court ruled the appeal invalid, effectively holding that even though the petitioner might have relied on the district court's mistake, he was not protected in that reliance, and his appeal was lost.

Second, it may be worth mentioning that the James line of cases dealt with judicial determinations of the meaning of federal criminal statutes, not their constitutionality. If a statute gives fair warning that certain conduct is criminal, then that may, in the Court's eyes, be enough to render such conduct prosecutable-even if the statute is enjoined for a while by lower courts. In United States v. Lanier, for example, the Court used language suggesting that it might take this view, finding a due process problem only when someone is prosecuted for "conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." (Emphasis added.) The Court, in other words, may decide that statutory warning is always fair warning.

Is the Power to Immunize Part of a Federal Court's Inherent Article III Power?

Some others may argue, however, that there is another source, besides the Due Process Clauses, for federal courts' power to immunize: It is simply Article III of the Constitution, which endows federal courts with the power, in the first place, to resolve "cases that arise under the Constitution."

Along with this power, this argument would run, comes adequate power to ensure access to the federal courts. Very few people can wait months and years to vindicate what they believe to be their constitutional rights. Yet waiting for a final Supreme Court ruling (or denial of review) in a particular case will typically take months or years. If plaintiffs must wait that long to rely on a ruling-before they can safely perform the acts they have wanted to perform all along-then they may not bother to bring their cases in the first place. Instead, they may simply forgo their desires, and perhaps their rights, and forget about challenging the statute at all.

The issue that the Supreme Court has so far left unresolved-of whether a Supreme or lower federal court injunction can be relied upon to confer immunity from prosecution-ought to be definitively answered, one way or the other, so that litigants know where they stand.

It may well be that, as a practical matter, the federal and state prosecutors are unlikely to "reach back" and prosecute persons who acted at a time an injunction was in effect. But, on the other hand, some prosecutors might well be tempted to do so, especially when it comes to politically-charged matters, like abortion in Mississippi (the conflict with which this column began.) Accordingly, Congress and/or the federal judiciary should clarify things so that people can know how much-or how little-injunctive relief is really worth.

Americans are often said to have a love-hate relationship with rural America. On the one hand, many wax nostalgic about the good old days, simpler times, the bond of "rural community" that many of our grandparents once lived, even if most of "us" grew up in the city. Plus, most everyone enjoys a bit of time spent in "nature," and some even realize--the urban ag craze aside--that most of our food is grown "in the country." On the other hand, urbanites often hold rural people in disdain, mocking them for their attachment to place, their regressive politics and culture and, yes, even for their nostalgia.

One particular aspect of the "love" (more precisely, nostalgia) with which we may regard rural America is the tendency to think that bad things associated with cities--most notably crime--are largely absent in smaller towns, in nonmetropolitan areas. That's hardly accurate, as I've discussed here and here. I wonder, though, if these rural myths are the reason that even more shocking crimes in rural settings--crimes involving, for example, racial or ethnic animus--don't get national attention. For crimes like these, I would think that urban Americans might be anxious to publicize the crimes, to hold these acts up as justification for the "hate" (that is, disdain, contempt) part of the relationship.

I was reminded of all this last week when the New York Times ran a story headlined, "Black Man's Killing in Georgia Eludes Spotlight," dateline Lyons, Georgia, population 4,169. Kim Severson's story tells of a white man, Norman Neesmith, killing a black man, Justin Patterson, in Lyons last year "on a rural farm road, here in in onion country." Neesmith was arrested and charged with seven crimes, but he is expected to plead guilty to involuntary manslaughter and reckless conduct, for which he might be sentenced to just a year in "special detention," which means no jail time. Severson goes on to compare the rural Georgia case to that of Trayvon Martin, which has attracted national and international attention:

In both cases, an unarmed young black man died at the hands of someone of a different race.

And [Justin Patterson's parents] began to wonder why no one was marching for their son, why people like Rev. Al Sharpton had not booked a ticket to Toombs County. The local chapter of the N.A.A.C.P has not gotten involved, although Mr. Patterson's farther approached them.

* * *

Why some cases with perceived racial implications catch the national consciousness and others do not is as much about the combined power of social and traditional media as it is about happenstance, said Ta-Nehisi Coates, a senior editor at The Atlantic who writes about racial issues.

Several events coalesced to push the Martin case forward: an apparently incomplete police investigation, no immediate arrest and Florida's expansive self-defense law.

The New York Times' highlighting the overlooked Patterson case reminded me of another pair of cases last year that received grossly disparate media attention.

I learned quite by accident last summer of a federal conviction based on a 2010 hate crime in Carroll County, Arkansas. It was especially odd to learn of the conviction by coincidence (from a UC Davis colleague whose distant relative in Arkansas sat on the jury!) because this was the first ever conviction ever under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, a federal law passed in 2009. Here's what happened: After encountering each other at a gas station in Alpena, Arkansas (population 371) in the early morning hours in June 2010, three white men allegedly hurled racial epithets at five Latinos and then chased the Latinos in their car, while the white driver of the truck chasing them waved a tire wrench out his vehicle's window. The truck driven by the white men eventually ran the Latinos' car off the road, where it rolled over and burst into flames. All of the Latinos were injured, one very seriously, but all survived. Less than a year later, a jury in a federal courthouse in Harrison, Arkansas--(population 12,943, about 20 miles from the events, and with a reputation as a long-time bastion of KKK activity) took less than an hour (!) to convict the driver of the truck, 20-year-old Frankie Maybee, of "five counts of committing a federal hate crime and one count of conspiring to commit a federal hate crime." One of his companions, 19-year-old Sean Popejoy, had already pleaded guilty to a single hate crime and a conspiracy count; he turned state's witness. The third man was not charged, apparently because of a lack of evidence that he was part of the conspiracy. (In an effort to learn more about Carroll County matter last summer, I interviewed the Arkansas State Trooper who had helped investigate it, as well as the Arkansas Democrat-Gazette journalist who reported on it. They provided some back story, which I'll take up in a subsequent post.)

Several months after the convictions in this case, it had not yet been discussed anywhere except in local media. The Arkansas Democrat-Gazette ran about half a dozen stories, starting in April, 2011, when the men were indicted, running through the trial itself, and ending with Maybee's sentencing to 11 years in prison, in September, 2011. Television stations in nearby Springfield, Missouri covered only the sentencing, and Reuters, too, had finally found the story by then. In that way, the Arkansas case is similar to another Shepard/Byrd Act indictment that preceded the Arkansas conviction, this one in Farmington, New Mexico involving the torture of a developmentally disabled Native American by white men. That case resulted in a guilty plea and was mentioned, along with other Shepard/Byrd cases, in this NPR story a few days ago. (Other NPR coverage of the Shepard/Byrd law, which also mentions the New Mexico case post-guilty plea, is here and here).

Contrast that with the Shepard/Byrd charges against the three young white men who recently pleaded guilty in the death of James C. Anderson, a black man in Jackson, Mississippi. New York Times coverage of that crime is here, here, here and here. The Mississippi story is, of course, a huge one and deserves all the attention it got. But the Carroll County story seems like a pretty big one, too (did I mention that it was the first Shepard/Byrd conviction!?!), as does the case out of Farmington, New Mexico.

What explains the disparate and decidedly after-the-fact media attention to these cases? Perhaps coincidence. Perhaps differences in the Department of Justice's efforts to publicize the charges. Perhaps the fact that the Mississippi crime resulted in death whereas the Arkansas and New Mexico crimes did not. But as a ruralist, I can help wonder if the rural-ish settings of these crimes also obscured them from the national media?

Carroll County has a population of just 27,446, of which 12.7% are of Latino or Hispanic origin. I know the area quite well because I grew up in a contiguous county, and I wrote a lot about Carroll County's three-decade history of Latina/o migration in my 2009 article, Latina/os, Locality and Law in the Rural South. In 2003, MALDEF entered into a settlement with the Rogers, Arkansas Police Department, in neighboring Benton County, to prevent racial profiling.

Farmington, New Mexico has a population of just over 45,000, but surrounding San Juan county is technically metropolitan, with a population of just over 130,000. Indian reservations comprise more than 60% of San Juan County's land area, and 36.6% of its populace are Native American. Farmington has been the subject of major civil rights investigations over the course of four decades.

Like the relations between blacks and whites in Mississippi, then, both Carroll County, Arkansas and San Juan County, New Mexico have histories of racial and ethnic tensions. I would think the racial/ethnic contexts of these two incidents would make them interesting to a national audience--as would they way they illustrate widely held perceptions of the "best" and "worst" of rural America. The "worst" is that the hate crimes occurred--which confirms the image of rural folks as small-minded and bigoted. The "best"--at least in the Arkansas case--is that a local jury of the defendant's peers convicted the small-minded bigot--and they did so in no time flat.

Cross posted to Legal Ruralism and SALTLaw Blog.

(Cross-posted from Jurist.com)

JURIST Columnist Vikram Amar, writing the inaugural edition of a column authored by the faculty of the University of California, Davis School of Law, says that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans...

Detractors likely see last week's ruling striking down California's ban on same-sex marriage, Proposition 8, as a result-oriented decision calculated to reinstate same-sex marriage in the Golden State and at the same time discourage Supreme Court review on account of the California-specific reasoning underlying the opinion.

It is worth noting that Judge Reinhardt, the opinion's author, would also have been accused of activism had he written a broader ruling that called into question other state bans on same-sex marriage as well. Still, Reinhardt's effort does suffer from significant logical and doctrinal problems. He attempted to wrap himself in the cloak of Romer v. Evans, the famous 1996 Supreme Court ruling in which Justice Kennedy wrote for the majority to invalidate a Colorado initiative that withdrew, across the board, protection from discrimination on the basis of sexual orientation for all persons of gay or bisexual orientation while leaving in place such anti-discrimination protection for people of heterosexual orientation. Reinhardt also relied on two features of Proposition 8 that he said doomed it under Romer and other cases. First, California repealed an existing right to same-sex marriage; California did not simply choose not to recognize one in the first place (as in other states). Second, California's repeal of the marriage label was irrationally narrow, insofar as it left intact all the tangible benefits of same-sex marriage for gay couples.

The big problem is that neither of these features of Proposition 8 brings the case within the scope of Romer. In Romer, nothing seemed to turn on the fact that the Colorado law in question, Amendment 2, had taken the form of a repeal. Imagine there were no anti-discrimination laws relating to sexual orientation in Colorado at all. Colorado then creates such laws in something it calls "Amendment 2(a)," but provides therein that "none of these newly created rights concerning sexual orientation discrimination shall be enjoyed by persons who are of gay orientation or lifestyle." I have no doubt the Court would have struck this down just as it did the law in Romer. In fact, Justice Kennedy in Romer actually used "withheld" instead of "repealed" in one place, to describe Amendment 2. So Romer is not about impermissible repeal, but rather about unfair exclusion of a group from a benefit.

Part of what made the initiative in Romer so unfair, the Court said, was its sweeping breadth. So the second argument Judge Reinhardt makes for striking down Proposition 8 - its narrowness - not only finds no support in Romer, this argument is actually undermined by the reasoning of Romer.

There are other, related, problems with Judge Reinhardt's opinion. His finding that Proposition 8 cannot rationally be thought to reflect California's desire to proceed cautiously with major social change because the initiative was styled as a "permanent" cessation of, rather than a moratorium on, same-sex marriage is quite unconvincing. A cessation is always no more than an indefinite break, insofar as the people of California remain free to repeal any state law in the future, even Proposition 8 itself. Indeed, can anyone see last week's decision coming out differently if Proposition 8 had been written to require all state officials to implement "an indefinite moratorium, until further action from the people, on all same-sex marriages, so that Californians may safeguard their vision of the institution of marriage in light of the way marriage has developed throughout history and across the nation"?

The analytic moves Reinhardt makes create problematic incentives for states. If a state chooses to experiment by recognizing same-sex marriage (or any other right not required by the federal Constitution), it can now reasonably worry that repeal will be difficult. If a state confers most of the tangible benefits of marriage on same-sex couples, it can now reasonably worry that its failure to extend the marriage label will be struck down as irrational.

Defenders of Judge Reinhardt might suggest that he was in a bind. Proposition 8, they may say, was a measure driven by hostility towards gays, but direct evidence of such animus on the part of decision makers (in this case voters) is always hard to adduce. And, they would add, the Supreme Court has itself (in cases like Romer) struck down anti-gay measures using inadequately explained and/or logically unconvincing reasoning. Constitutional law, they might observe, is always choppy in a period of transition, during which courts are working their way through what they think is the constitutionally right answer but are restrained for prudential reasons from articulating at the outset a full-throated explanation of the constitutional principles involved. Given pragmatic constraints, Reinhardt defenders would suggest, the judge could not easily have held that equal protection principles should make us skeptical of bans on same-sex marriage everywhere, and that such bans cannot survive the intermediate or strict scrutiny they warrant. Such an intellectually honest opinion would have forced the Supreme Court to decide a major issue that the Court could think will benefit from percolation in the states and the lower courts for a while. On this view, Judge Reinhardt, by ruling on California-specific grounds, reached the constitutionally just result while doing the Supreme Court (and Anthony Kennedy in particular) a favor by giving the justices a basis on which they can stay out of this tangle, for now.

However, even if someone were to agree with the premises of Judge Reinhardt's defenders (and I take no position on that here), I think his opinion is still open to question because there was a better path to the same endpoint. Had the Ninth Circuit held that the official proponents of Proposition 8 lacked Article III standing to defend the measure in federal court, Proposition 8 would die in California just as it does if Reinhardt's approach is allowed to stand. It would die because Governor Jerry Brown and Attorney General Kamala Harris (the only persons with proper standing in federal court to defend the measure) have made clear they will not defend it. A class action on behalf of all same-sex couples in California could be brought (as Proposition 8 challengers probably should have done in the first place), and then (after Perry and Harris decline to defend) a default judgment in favor of this class of plaintiffs and a corresponding statewide injunction against enforcing Proposition 8 would ensue.

This result would have been better for same-sex marriage proponents than Reinhardt's approach because even though the same result invalidating Proposition 8 would be reached: (1) California would join the ranks of the same-sex marriage states in the important national tally by virtue of decisions of elected California officials (Attorney General and Governor) and the voters who elected them, rather than by unelected federal judges (especially the notoriously liberal Reinhardt); (2); the likelihood of Supreme Court review would be much lower than it is even under Reinhardt's California-specific approach; (3) Judge Reinhardt could appear to be displaying judicial modesty and obedience by taking to heart the admonitions by the Supreme Court reversing a Ninth Circuit case he authored 15 years ago concerning the lack of initiative proponent standing in federal court; and (4) there would be no doctrinal externalities to other settings arising from Judge Reinhardt's curious reasoning.

The only remaining question is whether the Ninth Circuit's (or the Supreme Court's, for that matter) hands are tied with respect to initiative sponsor standing because of the California Supreme Court opinion last November indicating that proponents have standing to assert the interests of the state in state court. Simply put, the California court's ruling does not resolve the standing question in federal court. Certainly if California courts were to hold that every voter has standing to assert the interests of the state electorate to defend an initiative when statewide elected officials decline, such a determination would and could not create citizen standing in federal court.

Instead, as the Supreme Court has made clear in cases discussing jus tertii (or third-party) standing, when someone is permitted standing in order to assert the individual or collective rights of another individual or group, the person seeking standing ideally would have a special relationship with the right holder(s) to satisfy the Court's prudential concerns that there will be adequate representation. With regard to elected officials representing the interests of the voters, tradition and the fact that the officials are elected or appointed create that relationship of accountability and generate good representation. But with respect to initiative proponents who were not known or picked by the voters when the electorate adopted an initiative, there is no process (and no real discussion by the California Supreme Court) that explains why the proponents are accountable to and thus can be representatives for the voters. In a 1997 opinion, the Supreme Court expressed "grave doubts" about initiative proponent standing and observed:

[Elected] [s]tate legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. [But initiative proponents] are not elected representatives, and we are aware of no Arizona law appointing initiative proponents as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as [constitutionally] qualified defenders of the measures they advocated.

The California Supreme court has told us that California law authorizes proponents to represent the state in state court. Is that enough? I would argue not. Note that the Supreme Court pointed out at least two problems with proponent standing in Arizona - lack of state law authorization, and also the fact that proponents are not "elected representatives" or "appoint[ed] agents." The California court ruling may address the former, but does precious little to blunt the latter.

Why should lack of election or formal appointment as a state agent matter? Because Proposition 8 proponents were never actually chosen by the people, nor designated by any of California's elected representatives, to speak for the state's electorate. Of course, the measure that the proponents proposed was adopted, but that does not mean that the electorate decided - or intended - that these particular proponents ought to speak or act for the voters in any representative capacity.

In short, initiative proponents not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

In fashioning a workable balance between the competing concerns presented by initiative-proponent standing, the federal courts should recognize the possibility of proponent standing, but only when the conferral of power to defend on proponents is clearly provided for in state law. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, proponent standing seem inadequate to confer notice on the voters since, as the Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to spell out who within the proponent organization is entitled to make key litigation decisions and concessions, and also what the relative power of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative proponents.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision last November, perhaps voters in California should, going forward, know and factor in that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court. But because such state-law clarity was not in place when Proposition 8 itself was passed (and I note here that it was passed by a slim margin), I will not be surprised if the Supreme Court concludes that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.

Denying them federal standing may have been (and may still be) the prudent thing to do.

Vikram Amar is the Associate Dean of Academic Affairs and a Professor of Law at the University of California, Davis School of Law. He writes, teaches and consults in the public law fields, especially constitutional law, civil procedure and remedies. He is a co-author of Constitutional Law: Cases and Materials, and he is a co-author on a number of volumes of the Wright & Miller Federal Practice and Procedure Treatise.

Suggested citation: Vikram Amar, Revisiting Standing: Proposition 8 in the Ninth Circuit, JURIST - Forum, Feb. 16, 2012, http://jurist.org/forum/2012/02/vikram-amar-marriage-standing.php.