April 26, 2013

If the Supreme Court Decides the Proposition 8 Sponsors Lack Standing, What Will Happen to Same-Sex Marriage in California? Part Two in a Two-Part Series of Columns

Cross-posted from Justia's Verdict.

In my last column (Part One of this series), I began to lay out what I think might (and should) happen if the U.S. Supreme Court decides that the Proposition 8 sponsors lack standing in federal court.  I explained my view that such a ruling is the best option for the Supreme Court because the voters of California, in enacting Proposition 8, cannot be said to have designated the sponsors as the People's agents-and agency is a key concept here-in that the voters did not do or say anything that manifested their assent to create a relationship of agency.  (It is on this crucial question of assent to agency where, as I explain in longer academic writings, I part company with thoughtful commentators, like Ed Whelan, who have argued that as long as the California Supreme Court today thinks that under the California constitution the sponsors are the People's representatives, it does not matter whether voters, when they enacted Proposition 8 in 2008, could have anticipated this principle of California law, which was not made clear until 2011.)

I also explained in Part One in this series of columns why I believe that if the Proposition 8 sponsors are found by the Supreme Court to lack standing, both the Ninth Circuit's and the District Court's rulings below should be vacated (that is, erased), and the plaintiffs (the two same-sex couples who sued in federal court in San Francisco) should get relief in the form of a "default" judgment that allows them, and them only (for the time being), to get their marriage licenses.  This result follows, I think, from the overall logic of the law in this area, as well as from what the U.S. Supreme Court said in Karcher v. May, in which a unanimous Court intimated that if the only defendant who is defending on the merits is found on appeal to have lacked standing all the while, the district court's adjudication of the merits of the plaintiff's claim should be vacated.

In the space below, I delve further into what might happen after it is determined whether the District Court's rulings should be left intact or undone.

Scenario 1: Judge Walker's Injunction Stands, and Is Read Broadly

Let us first imagine that the federal courts do not follow my suggested approach concerning Judge Walker's order.  I start with that possibility because I acknowledge that many (maybe a majority of) analysts assert (albeit, to my mind, without adequate explanation or justification) that District Judge Walker's injunction prohibiting the enforcement of Proposition 8 should  not be disturbed and should go into effect as is.  Suppose  that the injunction is left intact, and suppose that the injunction is read (as it certainly can be read) to apply not just to the named same-sex couple plaintiffs, but also to other same-sex couples.  What could happen then?

Well, to begin with, we could expect that neither the California Attorney General nor the Governor would contest this broad reading of the injunction.  And we know that the sponsors of Proposition 8 would not have any legal standing to object either (at least not in federal court).  The two county clerks who were named as defendants in the action, the clerks of Los Angeles and Alameda counties, would also probably be content to issue marriage licenses to other same-sex couples in those counties.

But what about the county clerks in other counties, counties that weren't named in the Proposition 8 lawsuit in Judge Walker's court?  If they feel bound by Judge Walker's order, and none complains, then perhaps Proposition 8 will not be enforced at all, and marriage will be available to all qualified same-sex couples in the state.

Yet, there are a few wrinkles here.  First, some individual who supports Proposition 8 might sue one of these county clerks and ask a court to clarify that Judge Walker's injunction does not apply to that clerk.  The plaintiff here might argue that the clerk in question is not bound by Judge Walker's injunction because he, the clerk, was not a party to that lawsuit and is not under the "control or supervision" (the term Judge Walker used) of any of the parties (such as the Governor.)  Any such suit would probably be brought in state court, because it's not obvious who would have standing in federal court to object to a clerk's issuing of same-sex marriage licenses.

Second, it bears noting that some county clerks represent, and have been elected in, counties that strongly support Proposition 8.  What if one of these clerks resists issuing same-sex marriage licenses, arguing that she remains bound by Proposition 8 until and unless a court tells her, specifically, otherwise?  If so, that clerk might then be sued by a same-sex marriage license applicant to get a determination of whether Judge Walker's order binds her.  Or she herself may even act proactively, going into court to ask for a clear ruling that she, the clerk, is not bound by Judge Walker's injunction or, if she is, to ask that the injunction be reopened because she didn't have a chance to participate in the proceedings Judge Walker's court.

This may then raise the question whether local clerks have federal standing to defend Proposition 8 (and remember that they, unlike the sponsors, they are elected officials).  And even if they do, a similar question arises of whether they have the authority to take a position in court that differs from the position urged by the Governor and Attorney General (that Proposition 8 is unconstitutional.)  These two related questions are tricky, and would likely require additional input from the California Supreme Court, which would take time.

My provisional sense is that it should be rare for any lower executive official in California to be able to take a legal position in court contrary to that which is being asserted by the Governor on the question of the meaning or validity of a statewide law; in a seminal ruling in 1981 (when Jerry Brown was Governor the first time!), the California Supreme Court ruled that even the state Attorney General (elected to be the chief legal officer of the state) could not take a position adverse to the Governor's in court because under the State Constitution, the Governor retains the "Supreme Executive power" to determine the public interests, and under state statutes he is to "supervise the official conduct of all executive and ministerial officers."  It may well be that county clerks are deemed executive and/or ministerial officers for these purposes, and thus are subject to gubernatorial control with respect to the positions taken in court.  It wouldn't make much sense, to me, to give locally elected county clerks more authority than the state's chief legal officer, the Attorney General, to defy the Governor in court, unless we conclude that county clerks are autonomous like charter cities, which have some independence from state control.

But as I suggested above, all this would take time to sort out (especially if any of the proceedings take place in federal court, and the federal judges feel the need to seek input from the California Supreme Court by way of certification, the device the Ninth Circuit used to get state court input on the question of sponsor standing.)

Or maybe all of these problems could be avoided if all same-sex couples seeking to be married are willing to go to Alameda or Los Angeles counties where licenses might be freely issued. Perhaps that would effectively nullify Proposition 8.  But it would also impose its own set of inconveniences on some couples.

Scenario 2:  Judge Walker's Broad Injunction Is Either Read Narrowly to Apply to the Named Plaintiffs Only, or Replaced by a Narrower One That by Its Terms Applies to the Named Plaintiffs Only

Now let us imagine that the course that I argue is the correct legal one is followed, and that whatever injunction is in force is issued (or construed) to award marriage licenses to the named plaintiffs only.  Then what?  One possibility is that county clerks, at least in counties that strongly oppose Proposition 8, would simply decide to start issuing same-sex marriage licenses generally even though no court order is directing them to do so.  While that is imaginable politically, I think it runs into legal barriers.  Indeed, that is precisely the action that was taken by the county clerk in San Francisco in 2004 (at SF Mayor Gavin Newsom's urging) but that was repudiated unanimously by the California Supreme Court in Lockyer v. San Francisco.  There, a majority of California Justices emphatically rejected the idea that a "local executive official, charged with the ministerial duty of enforcing [state law,] has the authority to disregard the terms of the [state law] in the absence of a judicial [directive], based solely upon the official's opinion that the [law] is unconstitutional."  So I don't think that county clerks could, or should, simply start disregarding Proposition 8 on their own.

But what if the Governor were to try to direct county clerks not to implement Proposition 8?  Again that might be politically plausible, but would it fly legally?  For starters, what about the Lockyer ruling?  Strictly speaking, the issue presented in Lockyer involved the power of local executive officials, not that of the Governor, but Justice Werdegar's separate writing in that case understood the majority opinion to sweep broadly and apply not just to local executive officials but to the entire executive branch:  "Make no mistake, the majority does . . . hold[] that [all] executive officers must follow statutory rather than constitutional law until a court gives them permission to do otherwise in advance."

Even if the Governor is not covered by the Lockyer opinion, there is still a question under California law about whether locally elected county clerks enjoy some autonomy from gubernatorial control in their performance of their duties.  I suggested above that perhaps a county clerk may not take a position in court that is adverse to the Governor's on the validity of a state law, but there may be a distinction between having control over the legal positions asserted in court, and having control over enforcement of the law itself.

Indeed, such a distinction (between declining to enforce and declining to defend in court) is hinted at in another potentially important piece of law that may constrain the Governor here, Article III, Section 3.5 of the California Constitution.  It provides that no "administrative agency [even one created by the State Constitution] has . . .power . . . to refuse to enforce a statute, on the basis of its being unconstitutional, unless an appellate court has made a determination that such a statute is unconstitutional."  Does this provision prevent the Governor from directing officials (even if they are otherwise under his control) not to enforce Proposition 8 until an appellate court determines Proposition 8 is unconstitutional?

It might, and it might not.  Is the Governor an "agency" within the meaning of Article III, section 3.5?  The Attorney General has issued advisory opinions that offer one possible definition of "agency" here that is broad enough to include, essentially, all state-level executive operations, and there is no doubt that the Governor is quintessentially executive and operates at the state, rather than the local, level.  At least one California court case seems to apply section 3.5 to another statewide elected official, the State Controller.

What about section 3.5's reference to refusal to enforce a statute?  Could one argue that section 3.5 does not apply to the Proposition 8 setting because Proposition 8 is a state constitutional provision, rather than a statute?  I don't think this argument would work.  First, and most important, it would be odd as a policy matter to favor the enforcement of state statutes over state constitutional provisions.  So the word "statute" here would probably be read to also include state constitutional provisions that are alleged to violate the federal Constitution.

Second, there may be an argument that Governor Brown would be refusing to enforce a regular statute-Proposition 22-were he to order the issuance of same-sex marriage licenses. Proposition 22 is the statute (a statutory initiative known as the Knight initiative) banning same-sex marriage that the California Supreme Court held unenforceable when it ruled in May of 2008 that the state constitution protects same-sex marriage.  But since Proposition 8 amended that part of the California constitution that rendered Proposition 22 unenforceable, perhaps one could contend that Proposition 22 is now a valid statute that would be protected by section 3.5.  A rejoinder to that argument could be that since, under the California Supreme Court's May 2008 decision, the Knight initiative was invalid when it was enacted eight years earlier (and we just didn't know that until 2008), it never was-and is not now-entitled to be considered a valid statutory enactment.  This is convoluted stuff.  And, as is true with the first scenario, all of this would have to be fought out in state court, and that would take time.

Finally, let us return to the distinction between the refusal to enforce a law, and the refusal to defend the law in court.  Whether such a distinction is a sensible one to draw, notice again that section 3.5 speaks only to the former, and does not seem to impose a duty on the Governor (even if he is an agency), or the Attorney General, to defend any measure challenged in court.  So, under Scenario Number 2, imagine that a new lawsuit, a statewide class action consisting of all same-sex couples in the state who desire to get married, is brought to challenge Proposition 8 on federal constitutional grounds (just as the two couples did in Judge Walker's court).  If such a class action were to be brought in federal court, and if the Attorney General and Governor were to decline to defend in that case (and assuming no county clerk could successfully intervene and take a position adverse to the Governor's), a default judgment protecting all same-sex couples would then issue, and Proposition 8 would be a dead letter even if were not repealed at the ballot box.  (It is also possible that such a class action could be brought in state court, alleging that Proposition 8 violates the federal constitution, but since state courts would permit the sponsors to defend the measure on the merits there, any ruling in favor of the plaintiffs would be less certain, and more time-consuming, than a default judgment.)

Thus, if the U.S. Supreme Court finds no sponsor standing in federal court, how broadly available same-sex marriage will be in California might still take some time to sort out.

April 14, 2013

Commenting on the commentary about "Accidental Racist"

I don't watch TV or follow much pop culture, and most of the country music I occasionally listen to is from old albums by the likes of Sara Evans, Faith Hill, Martina McBride and Alison Krauss.  But this was apparently a big week in country music thanks to Brad Paisley and his new album Wheelhouse.  I was on the road on Tuesday, but by the time I was catching up on email early Wednesday morning, I had lots of messages from friends giving me a heads up on the furor associated with Paisley's new song, "Accidental Racist," which includes a cameo from LL Cool J.  Commentators have varyingly discussed Paisley and his new song thusly:

In short, as one commentator put it, the song has attracted "an unusual amount of ... sneering."  Another called the response "overpowering vitriol." 


Eric Weisbard did not sneer in his piece for NPR. His headline references the history of white southern musical identity, and Weisbard touches on biases against the South, as well as white-on-white biases:

As you may have heard, Paisley is sifting through some rubble of his own right now, having been declared a national laughingstock by virtually all commentators coming from outside mainstream country. But then, this condescending dismissal is nothing new. There is a history to "Accidental Racist," the history of how white Southern musicians — heatedly, implicitly, at times self-servingly and not always successfully — try to talk about who they are in answer to what others dismissively assume they are. 

After all, while the Jim Crow South was Anglo supremacist politically, American culture offered a very different dynamic. Ever since white Northerners started putting out their records, Southern whites have represented a backward rural mindset in a national culture of jazzy modernity.  ... Variety loved jazz but scorned the hillbilly in 1926 as " 'poor white trash' genera. The great majority, probably 95 percent, can neither read nor write English. Theirs is a community all to themselves. [They are] illiterate and ignorant, with the intelligence of morons."

This reminds me of some of the points I made in The Geography of the Class Culture Wars about contemporary bias against Southerners, rural denizens, and the ever burgeoning group of people who get labeled "white trash." I note that various commentators of this Paisley/Cool J duet speak ill of the South in a broad-brush way that is not so different to what Variety had to say nearly a century ago.  This has me wondering if Paul McCartney and Stevie Wonder's "Ebony and Ivory," to which many commentators are comparing "Accidental Racist", elicited such ridicule when it was released?


Let me be clear:  I do not defend slavery, the historical South, nor the Confederate flag, which I see as necessarily signaling racism.  Further, I offer no comments on the artistic merits of "Accidental Racist," the song, though I will admit that this media frenzy about it led to my first country music download ever just so I could have the full musical experience, first hand.


Mark Kemp, too, puts "Accidental Racist" in historical musical perspective and notes regionalism's role in this kerfuffle.  Kemp observes that this is "hardly the first time a song by a Southerner dealing with white blue-collar issues has produced strong reactions among the Northeastern-based media."  


Weisbard's piece goes on to comment on the "choices" available to southern white musicians in the 1960s and 1970s, choices that may not have changed much:

They could embrace black music and contemporary life and cross over, like former Texan Janis Joplin. They could go bluegrass singing the Carter Family's now revived "Can the Circle Be Unbroken." Or they could join the notion of regional separatism to new concepts of identity: In songs by Merle Haggard and Loretta Lynn, that great euphemism, country, became something you could be proud of like James Brownwas proud to be black.

I find this recognition of "country" (rurality?) as identity interesting, encouraging--and authentic.  (Describing "country" as euphemistic is similarly insightful).  


Which brings to my single favorite commentary on "Accidental Racist," from NYT's "Room for Debate" series about the song.  (Yep, that's right, this little ol' country song was the topic of Room for Debate forum a few days ago, which might be seen as progress for both shunned rural whites and for blacks).  One of the commentators, novelist Will Shetterly, makes the point that Paisley and Cool J didn't write or perform this song for the liberal elites who have responded to it in mostly sneering ways.  In a contribution headlined, "Why Elites Hate this Duet," Shetterly writes of the song's many failings--from the perspective of elites/elitists, that is:  

The song’s first sin is it’s earnest. There’s no irony to please hipsters. 

Its second sin is it’s about members of the U.S.’s racially and regionally divided working class, a southern white Lynyrd Skynyrd fan in a Confederate battle flag T-shirt and a northern black rapper in a do-rag, gold chains and sagging pants. This song wasn’t made for, by or about people who consider themselves the cultural elite, and elitists hate the idea of being irrelevant, especially in a discussion of an issue as important as race. 

Its third sin is featuring a rap artist. Many elitists hate rap as much as they hate country, though they don’t like to admit it for fear of appearing racially insensitive. 

* * *  

Elitists are too smug to consider the possibility that a person from a culture may know it better than they do, so they make easy jokes about “Accidental Racist” being “accidentally racist”.

I like this affirming comment on Shetterly's post, from one who identifies himself as a "liberal elitist":

As a private-school-educated, deep blue liberal elitist, I find I agree with Mr. Shetterly, and in fact said a similar thing about Mr. Coates's piece just the other day. Let's be frank: this song isn't for me and mine. It's for a totally different audience. The problem with people like me is that we want important issues like race and poverty discussed, but only in the way we think is appropriate. We want to set the tone of every conversation. Then we laugh at or scorn guys like these, who take on the same subject in a different way. There are an awful lot of people out there who didn't go to Harvard, yet could greatly benefit from being party to a real conversation about race. However ham-handed it may be, I think there is real good intent behind this song, on the parts of both Paisley and L.L. Cool J, and I hope it does reach their intended audiences.

This, from NPR's Code Switch bloggers, is more typical of the (quasi-)scorn being heaped on Paisley, Cool J and their single:

Most folks, though, seemed to agree that it was at least a well-intentioned, if cringeworthy, gesture. Which we see a lot of in conversations about race, right? 

* * * 

Luis Clemens, our editor, was pretty adamant that this was some kind of elaborate joke. "This is all an elaborate and knowing gag meant to provoke a real conversation about race unlike the pseudo-discussion in the song," he said. "Think of it as a Derridean act of derring-do." 

But nope — Paisley and LL insist that it's the real thing. So if it's a well-intentioned mess, aren't their intentions a little dubious? 

MT: There's probably a mix of intentions, at work, right? I mean, Mr. Paisley and Mr. Cool James had to know that there was going to be a reaction. A lot of reaction. You don't tread into 'Solve Racism' Land lightly. Paisley's tweet yesterday indicated as much. 

So you can take it at face value, and many folks did: this is a serious effort to bridge cultures, to extend a hand and try to embrace someone else's humanity.

I can't resist coming back to this conclusion of Shetterly's piece: 

[I]f you think “Accidental Racist” is racist, accidentally or intentionally, read a few comments at a white supremacy site like Stormfront. So long as they call Paisley a race traitor, he and LL Cool J are doing exactly what the elitists claim they want: furthering the conversation about race in the U.S.A.

For a commentator calling Cool J a race traitor, look no further than this Room for Debate contribution by M.K. Asante.  


Mark Kemp asserts that Paisley's accidental racist in the Lynyrd Skynyrd T-shirt is not necessarily Paisley himself.  No, that man is arguably just a persona that Paisley (who, according to some commentators, is known for his "left-wing" views), has adopted for purposes of prompting a discussion about race.  If Kemp is right, maybe there's a bit of irony or something akin to it in this song after all.  Or maybe the irony is in the knee jerk responses of those who have missed this point.    


I can't help think of the firestorm "Accidental Racist" has wrought this week in relation to Shirley Sherrod, the former USDA official who was unceremoniously fired in 2010 after Andrew Brietbart publicized an out-of-context video excerpt in which she hinted at having failed to assist a poor white farmer. (That was, in fact, not the case.)  Matt Bai observed then the "depressingly familiar pattern in American life, in which anyone who even tries to talk about race risks public outrage and humiliation."  Paisley and Cool J seem to be providing another example of that sad phenomenon.  

Cross-posted to Legal Ruralism, SALTLaw Blog, and ClassCrits
April 12, 2013

Precisely What Will, or Should, Happen to Same-Sex Marriage in California if the Supreme Court Finds in Hollingsworth v. Perry That the Proposition 8 Sponsors Lack Standing? Part One in a Two-Part Series of Columns

Cross-posted from Justia's Verdict.

No one knows for sure what the Supreme Court is going to do with Hollingsworth v. Perry, the case (argued late last month) in which two same-sex couples sued in federal court to invalidate California’s Proposition 8, a voter-adopted state constitutional ban on gay marriage. But many—myself included—think that, among the various scenarios, the most probable outcome (and one that is perhaps more likely than not) is that a majority of Justices will dispose of the case by finding that the Proposition 8 sponsors (also known as the official “proponents” of the measure), the only ones who defended against the challenge, do not enjoy standing in federal court to speak on behalf of the State. If the sponsors lack standing, there is no valid “case” or “controversy” (terms used in Article III of the U.S. Constitution) in which the Supreme Court could resolve the merits of the plaintiffs’ equal protection and due process challenges.

As I have explained more fully in a number of writings going back a few years (including this one), my reason for doubting the sponsors’ standing—and it differs somewhat from the reasons argued in the amicus brief filed by Professor and former Acting Solicitor General Walter Dellinger, in which he also concludes that the Proposition 8 sponsors lack standing—is that when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

The Consequences of a Denial of Standing to the Proposition 8 Sponsors: Common Ground and Divergent Opinions

But if the Court finds no sponsor standing, what happens next? There seem to be a number of answers that have been offered by various talking heads. In the space below, the first of a two-part series of columns, I explain, albeit in necessarily abbreviated terms, what I think should and might happen.

For starters, if sponsor standing is found to be lacking, everyone agrees (or certainly ought to agree) that the Ninth Circuit opinion invalidating Proposition 8 on the merits and creating law of the Ninth Circuit that could conceivably affect other states and also other issues in the Circuit would be vacated, that is, figuratively erased. Beyond that, there is also broad agreement that the two named same-sex couples in the Hollingsworth case who sought marriage licenses from the county clerks in Alameda and Los Angeles counties, respectively, should get their licenses. But exactly why and how these two named couples would get the relief they seek is where commentators seem to diverge.

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated. The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.” A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask: If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place? There are a few reasons. First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court. (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail. But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.) So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held. Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

As Professor Marty Lederman and I and others have pointed out, under the law of the Ninth Circuit (and perhaps also that of the Supreme Court), 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 without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to the named plaintiffs 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 who were already married in California in the summer of 2008 (during the window before Proposition 8 was passed) would have standing in federal court to challenge Proposition 8 on the theory that their marriages, which were not invalidated by Proposition 8, are nonetheless stigmatized unless other same-sex couples can marry too. And I don’t think that argument would fly.

As Professor Lederman has suggested, Judge Walker’s injunction was seemingly overly broad even assuming that the trial was properly held, and Professor Lederman argues that the way to cure this mistake is to construe the injunction narrowly to apply only to the named plaintiffs, since any injunction broader than that would be impermissible. Technically, because the words used in Judge Walker’s injunction (and his subsequent denial of a “stay,” or a hold, on his injunction) do not explicitly refer to other same-sex couples beyond the named plaintiffs, we might be able to do what Professor Lederman suggests. But such a reading of the injunction’s plain words seems strained and surely not reflective of Judge Walker’s intent. Under my approach, no artificial construction of Judge Walker’s order is required, since I think the trial never should have taken place, and plaintiffs need to go back and make a request for a default judgment, after which the judge (Walker’s replacement, since he has retired) can enter a properly limited injunction. And the appropriateness of a narrow injunction is easier to see after a default judgment than after a trial on the merits. (As an aside, I do note that after a request for a default is made, a judge can hold a hearing if needed, but I’m not sure that one would be needed here, and I’m certainly not sure that such a hearing would look anything like Walker’s trial.)

Is the Scope of the Trial Court Injunction Appropriate for the Supreme Court to Discuss?

Professor Dellinger, for his part, says the scope of the injunction isn’t validly before the Supreme Court unless and until some valid litigant (i.e., not the sponsors, but rather a valid representative of the State of California) appeals it. I disagree with this position based on the analysis I’ve just discussed: The impropriety of the trial itself and the judgment to which it led is certainly something that the district court can and should consider on remand if the Supreme Court finds that the sponsors lack Article III standing, and the Supreme Court is well within its authority to give such guidance to the lower courts about what should happen on remand. But Professor Dellinger and I may have an even deeper divergence of opinion. Professor Dellinger argues that there is a standing problem in the Hollinger case because the sponsors lack standing, and they are the ones who have tried to invoke the federal court at the Ninth Circuit and Supreme Court levels (having lost in each of the lower courts.) By contrast, the plaintiffs, who invoked the power of the district court, clearly do have standing, so the district court had a case or controversy before it.

This reasoning is to my mind only partially correct. The district court did have a case or controversy before it for the limited purpose of granting a default judgment, but not for purposes of holding a trial to adjudicate the merits of the plaintiffs’ claims. There is always a case or controversy (assuming plaintiffs have standing, and are suing under a federal claim) for purposes of issuing a default judgment; the government or any other proper defendant cannot defeat potentially valid claims by simply not defending against them. But once the only proper defendants decline to defend, the district court does not have Article III power to do any more. And it doesn’t matter who was invoking the power of the federal court.

To see this, imagine that the plaintiffs had lost the trial, and had then appealed to the Ninth Circuit, lost on the merits there, and then sought review in the Supreme Court. In that hypothetical, the party invoking the jurisdiction of each level of the federal judiciary—the same-sex couple plaintiffs—would clearly have standing. But if the only persons defending were sponsors who lack Article III standing, neither the Ninth Circuit nor the Supreme Court could, in my view, rule on the merits. (Indeed, when the Supreme Court began its discussion of whether initiative sponsors lack Article III standing in in the 1997 case of Arizonans for Official English v. Arizona, the Court observed that “[s]tanding to sue or defend is an aspect of the case or controversy requirement,” not that standing to invoke the federal courts is an aspect of the case or controversy requirement.)

It seems to me that, notwithstanding some sloppiness here and there by the Court over the years (and no one can draw a straight line through everything the Court has said or done in this realm), if standing doctrine is to have any integrity, what matters for purposes of adjudication on the merits is that there be, at the time the merits adjudication is performed, valid, adverse, Article III-qualified parties on both sides of the “v.,” not just on the side of the “v.” that has invoked the federal judiciary.

In Part Two of this series (currently scheduled to run on this site on April 26, 2013), I will examine what will happen if Judge Walker’s ruling is left intact and is read broadly, rather than narrowly, to apply to couples other than the named plaintiffs. I will also consider what things might look like if, in response to a Supreme Court ruling that the sponsors lack standing, either county clerks themselves or the Governor and Attorney General decide on their own to stop implementing Proposition 8, whether or not any court order tells them they must do that.