Why the Prop. 8 case is no slam-dunk

AP File PhotoDistrict Judge Vaughn Walker prohibited the enforcement of Prop. 8 by “directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

AP File PhotoDistrict Judge Vaughn Walker prohibited the enforcement of Prop. 8 by “directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

Without a U.S. Supreme Court ruling on the merits of same-sex marriage, the issue will once again head back to court in California.

Last week, I wrote that the court should let the backers of ballot initiatives sue to enforce any such measures passed by voters but not enforced by government officials. If justices don’t, that could prevent them from issuing a substantive ruling on the fundamental right to marry raised in the Proposition 8 case they are considering.

Former Governor Arnold Schwarzenegger and Attorney General Jerry Brown wisely agreed with the people who sued the state alleging that Prop. 8 violates the U.S. Constitution. Schwarzenegger and Brown then refused to appeal District Judge Vaughn Walker’s resultant ruling. Instead, Prop. 8’s backers appealed to the Ninth Circuit Court of Appeals, and later the high court. But if that court rules that they lacked the right to appeal the case, Walker’s district court ruling will be all that’s left standing.

So, what exactly did Walker rule? He prohibited the enforcement of Prop. 8 by “directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.” In other words, his injunction against Prop. 8 was limited to the two California counties named as “official defendants” — Alameda and Los Angeles.

To prevent clerks in other counties from refusing to issue marriage licenses, the Attorney General still would have to go to court to get the ruling extended to the rest of the state.

At oral argument to the Ninth Circuit on December 6, 2010, the justices repeatedly brought up this issue. As Judge Stephen Reinhardt explained, “We have a federal decree that’s effective in two counties and then the Attorney General can move to the state court and we don’t know what the state court will do.”

But Lawyers for Prop. 8 are gearing up to fight that maneuver — and more. They told the Supreme Court that if it rules that they lacked any right to litigate the case, the original district court ruling isn’t valid, either. After all, without the Prop. 8 supporters, what you had in the district court was plaintiff Kristin Perry versus people who agreed with her, which isn’t a valid case at all because there was no conflict. They’ll also argue that even if there was a case, the only remedy is to give the two couples who brought the case a right to marry, since the case wasn’t pled as a class action lawsuit.

A ruling in June that says Prop. 8 supporters lacked the right to defend the law will, sadly, begin another round of litigation here in California. And it could result in far less progress than the backers of same-sex marriage are hoping for.

Arnold SchwarzeneggerBay Area NewsJerry BrownLocalMelissa Griffin

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