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


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.

14 responses to “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

  1. Charles says:

    While there may well be Article III problems with the scope Judge Walker’s order, and while a default judgment may have been appropriate, I don’t understand why the trial was inappropriate, nor do I understand why the district court could not have entered judgment on the merits. Rule 55(a) requires the clerk to enter default, but I don’t believe the rules require the court to enter default judgment. Whether to enter a default judgment is in the court’s discretion. Since the plaintiffs had Art. III standing in the district court and were seeking declaratory that a validly enacted amendment to the CA constitution violated the 14th Amendment and an injunction against public officials to perform a specific action, shouldn’t the district court have had authority to determine, on the merits, whether the plaintiffs were entitled to the relief they sought? As for the trial, even if the district court were to enter a default judgment, Rule 55(b)(2)(C) specifically provides that the court could conduct a hearing to determine the “establish the truth of any allegation by evidence.” So I can’t see why Judge Walker would have been wrong to hold a trial in any case, regardless of the nature of the judgment. Finally, to the extent you are suggesting that district courts should prefer default judgments to judgments on the merits where the defendant deliberately declines to defend, I could see this be abused by certain defendants in a form of reverse forum shopping. Imagine a defendant that faces or expects to face multiple suits in multiple districts. Imagine further that these suits seek primarily, or perhaps entirely, injunctive relief. If the cost of providing relief to any one plaintiff is not too high, the defendant may well decline to defend those suits assigned to unfavorable judges or in unfavorable circuits since a default judgment would have no precedential affect. The defendant can then wait for a suit in a forum more to the defendant’s liking before defending the suits on the merits. Maybe this already happens to some extent, but we don’t need a doctrine or policy in favor of default judgments to encourage it. In other words, I agree that the district court could have, and perhaps should have, taken the course you suggest here, but I’m not convinced the district court was required to take that course, so I don’t think it can be ordered to do so on remand, and ordering such a result seems problematic.

  2. ldfrmc says:

    Hard to read and ponder.

    In the words of Scalia: Just give me a date! (the calendar kind, not the dinner and movie type)

  3. pvineman1 says:

    Prof. Amar, thank you for eloquently stating what I have believed (and stated) from the outset of the Prop. 8 litigation: Judge Walker should have (although, as Charles points out, was not required to) held that the defendants did not have standing to defend Prop. 8; that the plaintiffs had standing to challenge Prop. 8; and, since Prop. 8 was not being defended by any party with standing, a default judgment was appropriate. That is precisely what would have happened had this been any run-off–the-mill case.

    As Charles notes, even if a federal district court is authorized to enter a default judgment, a plaintiff can still be required to, at least, prove up a prima facie case on the merits before obtaining the default judgment. This could be accomplished with a few affidavits and a memorandum of law. But what would have been the purpose of requiring the plaintiffs to put on a full-blown trial with numerous witnesses before obtaining an uncontested default judgment? The only purpose of engaging in this type of unnecessary procedure would be to create a spectacle for public consumption and political gain. Not the type of thing we expect from the federal judiciary, especially in these lean budgetary times.

    Once again, my (humble) prediction: The Court will hold that the Prop. 8 proponents did not have Art. III standing. And the most appropriate course would have been for Judge Walker to simply enter a default judgment for the plaintiffs — no lengthy trial; no lengthy opinion; no appeal to the 2nd Circuit or the Court.

    Turning to the Windsor case. The same conclusion is in order: The district court should have entered a default judgment in favor of Ms. Windsor, directing the United States to give her the $363,000 estate tax refund that she was entitled to as a surviving “spouse.” The United States did not have Art. III standing in the district court, as there was no “concrete adverseness” between the United States and Ms. Windsor. Both parties were in complete agreement that DOMA section 3 was unconstitutional. And both parties were in complete agreement that without DOMA Ms. Windsor was entitled to the $363,000. Likewise, the BLAG — not authorized by Congress, the full House or any member of the Senate to represent their interests — did not have Art. III standing in the district court. The district court mistakenly permitted the BLAG to intervene as a “party.” Indeed, the Windsor case is before the Court at this time as a direct result of the district court’s clear jurisdictional errors. Although, I suspect, that the district court was simply trying to be fair. But in his zeal to be fair, he ignored clear jurisdictional hurdles that can’t be waived.

    Although I believe that it is a violation of equal protection for a state to deny same-sex couples “marriage” licenses that it issues to opposite-sex couples, and for Congress to discriminate against same-sex “married” couples with regard to benefits and rights that it provides to opposite-sex “married” couples, I don’t believe that either of the cases presently before the Court provide a constitutional vehicle to address these issues. And for the Court to hold otherwise will open up a Pandora’s box of problems that will muddy up the Court’s jurisdictional doctrine for decades to come.

  4. Willem Kraal says:

    What ever the supremes decide we will have equal rights for all very soon in the land of the free and the gay.

  5. Kenny Claing says:

    Homosexuality is only a “claim to be” entity. It is an Intangible so it can’t be detected in an Individual person. Yes, Homosexuality exists as a condition but there is no known method to detect it in the Person. One can lie about it and never be proven otherwise. They have to “out” themselves to be known. Parents cannot detect it and surprised when “told”. Gays Marry Straights and have Children with them and then come “out” and “claim” Gayness. Even when they “claim to be” it is NOT provable. How come years of being Unknown? If it can be detected, why do they have to come “out “ of the closet? Because intangibles are not definable. In a big crowd, can you pick out the Homosexuals. In a crowd of a 100, two will be Homosexuals, according to a “survey” of 2% of our Nation. Can you pick out that two? But you could pick out the African American or the blond, but not the Homosexual. If they are unknown, how can our Govt. give Rights and Benefits to the Unknown? Tax money to the unknown is Fraud don’t you think? How then do they have “standing” in Court? To “claim” that they are Homosexuals but can’t prove it has NO CASE. I could prove to the Court that I am a MALE. She can prove to the Court that she is FEMALE. A homosexual cannot show Proof that he is one to the Court. Therefore, Homosexuality is Moot. With no “standing” in a Court of Law. SCOTUS should rule thusly. Pity.

    • i Gerrez says:

      The problem with all your “claiming” and “denial of standing” and obvious belief that gays and lesbians are not only “Moot” (i.e. irrelevant, even subhuman, I would imagine?) but they are attempting to pull a fast one on their families and on the court and on the IRS. The problem with all that twisting and wrangling and attempting to instill the idea that to be gay or lesbian is to be “less than” hetero-hateful, is this – they are STILL only seeking to be treated as anyone else is treated; to be given a fair shake and the ability to claim the benefits of the taxation they have submitted to, including social security. They are not seeking to obtain more than anyone else by virtue of their orientation – only what is due them by virtue of having paid their dues as citizen tax-payers. Pity you say? Yes, I do.

  6. i Gerrez says:

    Thank you for your assessment of the facts in this case. Very well presented.

  7. Michael Ejercito says:

    The stigma aergument has implications beyond this case.

    Let us assume arguendo that persons have standing to sue in federal court on allegations that they suffer stigma from state action upon third parties.

    Same-sex couples married in their home states would have standing to sue to strike down the marriage laws of other states, on the allegation that they suffer stigma from the denial of matrimonial rights to same-sex couples in other states.

    Gun rights activists can sue to halt the enforcement of gun laws against third parties, on the allegation that they suffer stigma from the denial of gun rights to third parties.

    Indeed, under this stigma standing rule, proponents in this case would have standing on allegations that they suffer stigma from the lower court rulings.

    The stigma standing rule would effectively obliterate limits on Article III standing

  8. […] plaintiffs itself has to be erased and re-sought (in a different form) by the plaintiffs.  I have argued that Judge Walker's judgment probably should be vacated (and language near the end of the Supreme […]

  9. […] Vikram David Amar, Precisely What Will, or Should, Happen to Same-Sex Marriage in California if the Supreme Court Finds… […]

  10. […] of Judge Vaughn Walker’s district court decision that ruled against Prop 8. Some scholars think Walker’s decision must be vacated, too. Each same-sex couple seeking to marry in […]

  11. […] 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: […]

  12. […] 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: […]

  13. Faculty Blog | 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 says:

    […] Cross-posted from Justia's Verdict. […]