(Newcomers to this issue might want to read this previous post first.)
Let's face it -- what the Ninth Circuit's motion panel will do with the request for an emergency stay from the proponents of Proposition 8 is anybody's guess. Instead of trying to prognosticate, this post will try to lay out the various possible scenarios, and sketch some appropriate options.
First, either the stay will be issued, or it will be denied. [UPDATE 08/16/2010: Late this afternoon comes word that the stay has been granted, and the appellate briefing schedule expedited, with directions to address the standing issue. That makes the analysis below even more relevant.] [FURTHER UPDATE 08/17/2010: This morning the same motions panel entered an order expediting the appeal brought by Imperial County from Judge Walker's denial of their motion to intervene. The briefing and argument schedule will be the same as for the appeal filed by the Proposition 8 proponents. See the discussion here; this action will ensure that all aspects of the standing issue are thoroughly briefed and considered.]
If the panel issues a further stay, that will be a slight indication that there are at least two judges on the Ninth Circuit who believe that the proponents have a chance of overturning the decision. However, those same two judges will probably not serve on the panel which hears the merits of the appeal. So a victory on the stay will not be predictive of a victory on the merits.
The odds are strong that the motions panel will deny the stay -- given both its composition, as discussed here, and the problems with the proponents' standing, as discussed in the previous post. In that event, there will be an option to present an emergency stay request to Justice Kennedy on the Supreme Court, since he handles matters coming out of the Ninth Circuit. Justice Kennedy will probably not issue the stay on his own, but will refer it to the full Court. It will take a vote by at least five justices to issue the stay -- so again, if the Court does issue a stay, that may bode well for the proponents when and if the case ever reaches the Supreme Court.
If the Supreme Court fails to issue the stay, the proponents will be in the same soup as they were when the Ninth Circuit panel denied the stay, without the option of taking it any higher. Same-sex marriages will then go forward in the liberal counties of California, while the appeal is being briefed and, about 18 months from now, argued. The issue of standing will probably not be resolved until the merits panel -- likely another group not favorable to the proponents, as noted earlier-- decides the case. If it rules that the proponents lack the required Article II standing, it will dismiss the appeal, and Judge Walker's decision will stand without having been affirmed. Same-sex marriages will continue in California while the proponents file a petition for review with the Supreme Court (there would probably be little point in trying to ask for a rehearing en banc, given the generally liberal bent of the Ninth Circuit).
What the Supreme Court will do with the petition is again anybody's guess. The odds are that by then, it will not be the same Supreme Court that it is today -- at least one or more of the currently sitting justices may have retired by then. (And according to this commentator, California may well have approved a ballot initiative allowing same-sex marriages by then.)
If the Supreme Court denies review of the Ninth Circuit's dismissal, then we will have an anomaly again: Judge Walker's decision will stand on its own, without any affirmance by any higher court. That will have consequences for California as a whole, which I discuss below.
Now let us introduce the would-be intervenors from Imperial County into the picture. Their appeal from Judge Walker's denial of their motion to intervene (and from his decision on the merits, as well) complicates the foregoing picture somewhat. (I am not aware that they have filed for an emergency stay also at this point.)
If the Ninth Circuit finds that Judge Walker erred in denying Imperial County's motion to intervene (and it well could, since he allowed San Francisco County to intervene, and then sat on Imperial County's motion for eight months before denying it only after he had finished the trial and decided the case), then it could do one of three things: it could reverse Judge Walker's decision, and send the case back to him for a new trial, with Imperial County participating this time; or it could take up Imperial County's appeal of the merits; or it could hold that Imperial County still lacks the required standing to prosecute an appeal, and dismiss their case -- again without affirming Judge Walker's decision.
The first option is rather unlikely, given first that Imperial County in its filings with Judge Walker admitted that it would not introduce any new evidence or arguments if allowed to intervene (see his unpublished opinion, at p. 15), and given also that if the case were tried again, everything could just repeat itself, with no likely change in the outcome (although Imperial County might be successful in disqualifying Judge Walker from presiding over any retrial). The third option leaves everyone in exactly the same position as the proponents would be if their appeal was dismissed, with the same options of seeking review in the Supreme Court. And as for the second option, it is only then that we would have an opinion either affirming or reversing Judge Walker's decision. Whoever loses at that point would definitely seek review by either the full Circuit en banc, or by the Supreme Court.
Depending on how those proceedings turn out, we could have either (a) a Ninth Circuit opinion -- whether by three judges or by the Court en banc, it does not matter -- laying down the law for the entire Ninth Circuit on same-sex marriages, or (b) a Supreme Court decision doing the same for the entire United States. The litigants prosecuting the appeals might want to think about those possibilities for a moment, before proceeding any further.
But now I would like to examine the intriguing possibilities of a dismissal of the current appeals without any opinion, either on technical standing grounds, or voluntarily. As I mentioned before, in that case, Judge Walker's decision would stand on its own -- the single decision of a federal district judge in the Northern District of California.
Such a decision would have no precedential value, except to the extent that other district judges -- if presented with the same question -- choose to follow it. There are four federal judicial districts in California -- Northern, Eastern, Central and Southern. Even though Judge Walker has enjoined the Governor, the Attorney General, the State Registrar of Vital Statistics, and the County Clerk-Registrars of Alameda and Los Angeles Counties from applying Proposition 8, he has no ability to extend his injunction to the county clerks of each of California's 56 other counties. (That is a consequence of the plaintiffs' bringing in as defendants only those County Clerks whom they knew would not oppose their case.) Moreover, as this commentator points out, Judge Walker did not certify a class of plaintiffs, so arguably his injunction would permit only the named plaintiffs to get marriage licenses. (Watch how quickly the San Francisco County Clerk ignores that limitation.)
The results would be haphazard -- some county clerks might issue licenses to same-sex couples, while others (such as in Imperial County, and in other counties which voted in favor of Proposition 8) would not. Those same-sex couples in counties which denied them licenses would have to take the county and its clerk back to court.
And now we get to the heart of this analysis. For the question is: in which court would such couples file suit? If they file in a federal district court having jurisdiction over the county, then they would (except for those nine counties subject to Judge Walker's San Francisco branch) find themselves before a different federal judge, who would not be bound by Judge Walker's decision, and would be free to disagree with him. And it is worth noting that in any such suit, the Eleventh Amendment could rear its head -- it was not even raised or discussed in Judge Walker's opinion, because the County officials involved were interested in collusion, not confrontation.
The Eleventh Amendment bars suits in federal courts against any State without its consent. (Under the Constitution, States have "sovereign immunity", just like the federal government.) Counties are considered subdivisions of the State when they are applying State laws or policies, and Judge Walker went out of his way to demonstrate that the application of Proposition 8 was a matter of statewide, and not local, policy (which is the rationale he gave for denying the application to intervene filed by Imperial County -- see pp. 9-17 of his unpublished decision). A County sued in federal court, therefore (or a County Clerk who was simply carrying out statewide policy as embodied in Proposition 8), would have a strong argument that the federal court would lack jurisdiction to hear the case. Given that the State government officials sued -- the Governor, the Attorney General, and the State Registrar -- do not themselves administer the issuing of marriage licenses, one has to question whether there was even federal jurisdiction for Judge Walker to proceed in the first instance -- especially since those officials declined to defend the validity of Proposition 8. (See the cases cited in Joe's comment below.)
So the couples might go to the local Superior Court for that County. They would be asking the California courts to declare Proposition 8 unconstitutional -- after its constitutionality (under State law) had already been upheld by the California Supreme Court. The Court carefully observed, in n. 11 to its decision on page 43 of the slip opinion, that the petitioners "have not raised any federal constitutional challenges to Proposition 8" (emphasis added). I would predict that no California Superior Court Judge, nor any Court of Appeal, for that matter, would go out on a limb and hold that even though the California Supreme Court held in Strauss v. Horton that Proposition 8 did not violate the due process or equal protection clauses in the California constitution, its enactment by popular vote nonetheless violated their federal equivalents. Instead, any such court or judge will happily defer the question by passing it up to the next level.
And if one thinks about it a little bit, this realization shows up the forum-shopping that went on in the case brought by Ms. Perry and her attorneys. For had they felt sure of a decision by the California state courts, they would have filed suit in San Francisco County Superior Court, and then taken the requisite appeals up to the California Supreme Court. Instead, they deliberately chose a court where they were handed the one judge who would be most sympathetic to their cause, and with his willing cooperation they structured their case very carefully so as to minimize its chances of being appealed.
Well, the plaintiffs Perry et al. have made their bed; now let them lie in it (figuratively speaking). The case as filed and decided could lead, as sketched above, to an appellate opinion having much broader reach and precedential value, or it could not. And if it does not result in any appellate decision on the merits, it will remain a parochial decision by a single judge, with no jurisdiction beyond nine California counties, and applicable as entered to only two same-sex couples -- at least until enough suits are brought in enough federal courts that the Ninth Circuit will eventually be required to address the merits (many, many years hence). The consequence is that the battle over same-sex marriages will still have to be fought, and will only probably be finally decided, at the ballot box.
The proponents of Proposition 8, and even the group leading Imperial County's appeal, might do well to ponder these considerations in the days ahead. Having been out-gamed in federal court, they might just do best to leave well enough alone, and to let Judge Walker's decision remain the solitary voice that it currently is. Sometimes the best strategy, when faced with an egregious decision, is not to appeal -- and thereby risk making matters still worse.