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.

By California Supreme Court Clinic Director Aimee Feinberg. Cross-posted from the California Supreme Court Historical Society Newsletter.

The California Supreme Court touches the lives of every Californian. The Court reviews the work of about 2,000 judicial officers, the largest law-trained judiciary in the world, and issues rulings governing countless day-to-day activities of the state’s residents. According to the National Center for State Courts, the California Supreme Court processed a staggering 9,562 matters in 2010, thousands of cases more than the next busiest state high court.

The Court’s reach extends beyond the state’s borders. In a comprehensive study published in 2007, Jake Dear and Edward Jessen concluded that the California Supreme Court is the most followed state high court in the United States. Thus, when it comes to tort law, insurance law, criminal law, and others, the saying rings true: as California goes, so goes the nation.

It is fitting, then, that one of the state’s newest legal clinics should train its attention on the state Supreme Court. In the fall of 2012, UC Davis School of Law launched the first and only law school clinic in the state to focus exclusively on the California Supreme Court. Inspired by a 2010 speech by former State Bar President Jeff Bleich and modeled to a large extent on Stanford’s first-in-the-nation U.S. Supreme Court clinic, UC Davis’s California Supreme Court Clinic provides pro bono representation to parties and amici in both civil and criminal cases pending before the state’s High Court. The Clinic’s six students, each of whom is selected to participate by application, become immersed in California Supreme Court practice and procedure. During the semester-long program, Clinic participants study the Court’s rules, learn principles of effective appellate advocacy, hear from seasoned practitioners, and, under faculty supervision, research and draft briefs to be filed in cases pending before the Court.

Like many appellate advocacy programs, the Clinic aims to teach students critical brief-writing skills. But focusing exclusively on the California Supreme Court offers students other important learning opportunities. Because the Court grapples with some of the most complex and consequential issues facing the state, students in the Clinic learn to research and analyze legal questions at an exceptionally deep level. They are called on to leave no stone unturned in their case research, to comb through legislative history, to examine agency regulations, to canvass laws in other jurisdictions, and to marshal policy arguments. By concentrating on the state’s highest court, moreover, the Clinic offers students the chance to see how a legal issue travels through the state system from start to finish. Likewise, because the Court (for the most part) has discretion to decide what cases it will hear, Clinic enrollees learn about the petition-for-review process and the characteristics of cases that may find their way onto the docket of a court of last resort. At the same time, focusing on a court with a docket as diverse as that of the California Supreme Court exposes students to an unusually broad array of legal issues. And by observing the Court’s oral argument sessions, students see some of the nation’s most respected jurists question advocates and explore the intricacies of complicated legal questions.

Litigating cases before the California Supreme Court also provides students with an important opportunity to serve the public interest. Although the federal courts undoubtedly decide significant issues, the California state courts provide the forum for many more disputes to be resolved: in 2012, litigants filed 372,563 matters in federal district court; in fiscal year 2010–2011, filings in California superior courts surpassed 9.4 million. At the same time, the state system often adjudicates cases

in the areas of law most likely to affect people’s everyday lives — how contracts are enforced, the accused are tried, businesses are regulated, marriages are dissolved, children are reared, and property is owned. By working on cases pending before the state’s highest court, Clinic enrollees have the chance to present their clients’ arguments knowing that a case’s outcome will almost certainly impact the lives of many people.

The Court’s special place in the state’s judicial system offers special opportunities for law students. For the participants in the Clinic, it is an honor to litigate before the Court.

Last November, the Supreme Court heard oral argument in Bilski v. Kappos, a patent case with significant implications. At issue in Bilski is whether a method for hedging risks in commodities trading comprises patentable subject matter. Many have criticized the prospect of granting exclusive rights on processes so divorced from traditional conceptions of “technology.” Others, however, contend that in today’s information economy, such valuable yet intangible innovations should be eligible for patent protection.

The patent community is now eagerly awaiting the Supreme Court’s resolution of the case, and much hangs in the balance. Commentators argue that Bilski could affect the patentability of everything from business methods and software to diagnostic tests and medical correlations. The case has attracted dozens of amicus briefs from parties such as the ACLU, American Express, Microsoft, IBM, and Yahoo!.

I offer no predictions on the Supreme Court’s substantive resolution of Bilski, but I do wish to highlight one methodological point. In prior proceedings, the Federal Circuit had denied the patentability of this invention based on its newly-articulated “machine or transformation test.” According to this test, a process is only eligible for patenting if 1) it is tied to a particular machine or 2) it transforms a particular article into a different state or thing. In many ways, this test reflects the Federal Circuit’s well-recognized preference for formalistic patent doctrine. In a variety of areas, the Federal Circuit has crafted bright-line rules that limit inquiries to a few core questions and discourage consideration of “extraneous” context.

Among other functions, such formalism partially shields judges from technologically difficult inquiries about patented inventions. For example, the Federal Circuit’s historic approach to patent infringement remedies followed a simple syllogism: if infringement, then injunction. According to this formalistic framework, courts would not consider the “value” of a patented technology or its social importance in determining whether to grant an injunction; they would issue such relief almost as a matter of course.

While the Federal Circuit favors formalistic rules, the Supreme Court’s recent forays into patent law reflect a preference for holistic standards. In areas as diverse as prosecution history estoppel, nonobviousness, and remedies, the Court has produced doctrine compelling judges to delve deeper into inventions and their technological context.

These methodological observations add another layer of complexity to Bilski. Substantively, the patentability of “intangible” processes has significant implications for the financial services, information technology, and biomedical industries. However, whether the Supreme Court answers this question with a holistic standard or a set of bright-line rules may significantly impact the administration of patent law.

Among other effects, the Supreme Court’s preference for holistic standards invites greater judicial engagement with technology and its context. In the realm of cutting-edge innovations, such contextual engagement can significantly increase the difficulty of adjudication. (Indeed, there is some indication that lower courts have struggled to apply the Court’s recent holistic standards.) Thus, while observers are eagerly awaiting the Supreme Court's substantive resolution of Bilski, the form of the Court's ruling may matter a great deal as well.