Prop 8 Overview

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[Last updated: Monday, June 24, 2013, 5:00 p.m. PDT]
To journalists, editors and interested parties:
Now that we’re at the end June — the final week during which we expect the U.S. Supreme Court to rule on the constitutional challenge to Prop 8 — I want to offer a quick summary about timing and possible scenarios, and what to expect for your planning purposes about the same-sex marriage ruling. This also provides a brief discussion of issues you are likely to hear legal pundits raise in the coming days, and what the City Attorney’s position on those will be.

So, I hope you find this helpful.

THE CASE

As you probably know, this federal challenge was brought by the American Foundation for Equal Rights on behalf of two California couples who are represented by Ted Olson and David Boies. City Attorney Dennis Herrera joined them as co-counsel in the case when the City and County of San Francisco intervened as a co-plaintiff on Aug. 19, 2009. Herrera’s office represents the public sector interest in ending marriage discrimination against same-sex partners. The case is currently called Hollingsworth v. Perry (No. 12-144). Along with a challenge to the federal Defense of Marriage Act, or DOMA, it is one of the two major cases to be decided that deal with marriage rights for same-sex couples. The DOMA case is called United States v. Windsor (No. 12-307).

TIMING

When will the Prop 8 ruling issue?
Based on past practice, the U.S. Supreme Court is expected to issue its decision on the Prop 8 case by the end of June. We anticipate that to mean no later than June 27. As of now, the high court has indicated that the next day on which it will issue further decisions is: Tuesday, June 25. Depending on how many cases’ opinions are announced Tuesday, the Court may or may not announce further days this week when it plans to issue opinions. As of right now, there are just 6 merits cases from the current term that have not yet been decided.

How does one check whether the Prop 8 ruling has come out?
Though the court will typically make known the next day on which it plans to issue decisions, it won’t make known which cases it intends to rule on. The court customarily begins announcing its opinions at 10 a.m. EDT (or 7 a.m. PDT), and it can take some time — 30 minutes or possibly more — for the court to finish announcing its decisions for the day. If you’ve worked with me on other U.S. Supreme Court cases to which San Francisco has been a party, you’re probably used to these as “fire drill” mornings in which we’re all up early to wait for rulings — only to continue waiting. The best resources for breaking news from the U.S. Supreme Court are the court’s own website (at https://www.supremecourt.gov) and SCOTUSblog (at https://www.scotusblog.com).

What will happen after the Prop 8 ruling comes out?
When the ruling in Hollingsworth v. Perry issues — no matter what the outcome — the City Attorney will host a legal Q&A for journalists only on the sidewalk in front of City Hall, probably before 8 a.m. A short time later, after City Hall opens, Mayor Lee will host to an event or news conference to which leaders, community members, and journalists will all be invited. (Watch for announcements from the Mayor’s Office.) But because of several factors (e.g., uncertainty of what the ruling will be; complexity of what the ruling could mean; etc.) it’s impossible to predict in advance exactly when or where these events will be. If you’re not already on the City Attorney’s press and community contact list, you can enter your contact information at our online form to receive news releases, media advisories and updates to be informed with news of the latest plans.

If Prop 8 falls, when could same-sex weddings begin?
No matter what the disposition of U.S. Supreme Court cases, there is normally a period of 25 days before the court’s final judgment is entered to allow for parties to petition for rehearing. Petitions for rehearing are almost never granted. Still, should Prop 8 be invalidated, we expect a period of approximately one month before same-sex marriages could begin in California. Other factors that could affect timing include minor procedural delays (a few days, for example, for the Ninth Circuit to enter its “mandate,” or formal notice of decision in the case), or potentially more lengthy delays because of post-ruling litigation (if, for example, Prop 8 proponents or other parties sue to dispute the statewide scope of the U.S. District Court’s ruling). Other scenarios could theoretically shorten the approximately one-month waiting period (if, for example, the Ninth Circuit were to vacate its stay pending appeal even before the Supreme Court’s final judgment issues). As soon as we become aware of details about timing, of course, we will quickly inform news organizations and the public. But, for your reporting purposes, it’s worth knowing that there is uncertainty to predicting exactly when same-sex marriages could begin if Prop 8 falls.

RULING SCENARIOS

Unpredictable nuances are possible with any judicial ruling, of course, and Prop 8 is no exception. Still, possible outcomes can be broadly categorized into four general scenarios, which I’ve ordered below from best-case to worst-case. The good news is that in three of four possible scenarios, Prop 8 falls. The bad news, of course, is the losing scenario.

Scenario 1: We win on the merits
In the “Gold Medal” scenario, the U.S. Supreme Court reaches the merits of Proposition 8’s constitutionality and affirms the Ninth Circuit decision invalidating California’s measure. It is possible that such a favorable ruling could go beyond just California, holding that all state bans on same-sex marriage are invalid (i.e., legalizing same-sex marriage nationwide); or, alternatively, ruling that states with civil union and domestic partnership laws must require full recognition for marriage rights for same-sex couples (i.e., legalizing same-sex marriage in several more states, including: Colorado, Illinois, Minnesota, Nevada, New Jersey, and Oregon). Any victory on the merits restores marriage equality in California.

Scenario 2: The Supreme Court ‘DIGs’ the case
In the “Silver Medal” scenario, the U.S. Supreme Court dismisses the case, leaving the Ninth Circuit’s ruling that Prop 8 is unconstitutional as the final, binding decision. In lawyer parlance, this outcome is called a “DIG” — for “Dismissed as Improvidently Granted” — and it occurs when at least five justices agree that the petition for certiorari (or review) should never have been granted (it takes only four of the nine justices to grant review). Though DIGs aren’t typical, it’s notable that Justices Kennedy, Breyer and Sotomayor all questioned in oral arguments whether review should have been granted. This outcome would apply solely to California. But it would remove any prospect that a party hostile to marriage equality would challenge whether the ruling applies statewide.

Scenario 3: The Supreme Court holds that Prop 8 backers lacked standing
In the “Bronze Medal” scenario, the U.S. Supreme Court rules that the Prop 8 proponents lacked standing under federal law to appeal the U.S. District Court’s decision. Such a decision would vacate the Ninth Circuit opinion, leaving U.S. District Court Judge Vaughn Walker’s ruling that Prop 8 is unconstitutional as the final, binding decision. Prop 8 is held unconstitutional in this scenario, but parties hostile to marriage equality might seek to litigate over whether the District Court ruling applies statewide. Already, Prop 8 proponents and some ill-informed pundits have argued that such a ruling on standing should limit the judgment to only the two couples (who are named plaintiffs in the suit), or to the Counties of Alameda and Los Angeles (which are named as defendants in the suit). Those arguments are wrong for reasons I’ll get into in the next section. But for purposes of planning your coverage, it’s worth noting: (a) that City Attorney Herrera is willing to publicly dispute those arguments; and (b) that the legal battle over Prop 8 may continue on further, if parties hostile to same-sex marriage decide to pursue these ill-advised arguments.

Scenario 4: We lose on the merits
In the “No Medal” scenario, we will have lost the case. Here, a majority of U.S. Supreme Court justices agree to reverse the Ninth Circuit, upholding Proposition 8 as valid under the U.S. Constitution’s equal protection guarantees. This would settle the legal question about Prop 8, though the larger debate about marriage equality in California would likely shift from the legal arena to the political realm. That’s beyond the scope of this office’s work, of course. But for your reporting purposes, it may be prudent to identify in advance political leaders and organizations most likely to pursue a repeal of Prop 8 at the ballot. It may also be worth identifying the most recent polling data you can find to gauge California voters’ view of the subject. (I know the Field Poll conducted a survey in February that included data about marriage equality at https://www.field.com/fieldpollonline/subscribers/Rls2443.pdf, but I can’t confirm whether that’s the most recent statewide survey.)

SPECULATION ABOUT THE SCOPE OF A STANDING RULING

I’ve received a number of questions from journalists already seeking the City Attorney’s response to speculation by some legal pundits that a U.S. Supreme Court ruling on standing could severely restrict the scope of the U.S. District Court’s ruling to either: (a) the two couples who are named plaintiffs in the case; or (b) to the Counties of Alameda and Los Angeles, which are named as defendants.

Our first response has been to point folks to footnote 4 in the City Attorney’s U.S. Supreme Court brief in the Prop 8 case (it’s page 37 of the PDF, and page 19 of the brief itself). That summarily addresses the question of whether all county officials in California would be enjoined from enforcing Prop 8 under the U.S. District Court’s ruling that Prop 8 is unconstitutional.

The short answer is that the U.S. District Court judgment applies to state officials charged with enforcing the marriage laws, and all those acting in concert with them or under their supervision. The California Supreme Court has already held that marriage is a matter of “statewide concern” in which county officials act solely in a “ministerial” role on behalf of the state. Ironically enough, the case that cemented that conclusion in case law was one we lost in 2004, when San Francisco’s marriage equality battle first began: Lockyer v. City & County of San Francisco. You may recall that as the case in which City Attorney Herrera defended Mayor Gavin Newsom’s decision to issue same-sex marriage licenses in the city. The state high court held that the mayor lacked authority to do so as a county official, and that when it comes to marriage, a county clerk or recorder acts “as a state officer,” reflecting “the importance of having uniform rules and procedures apply throughout the state to the subject of marriage.”

Beyond the legal arguments, however, there is also a political dimension to consider. After years of litigation, on what may be the major civil rights issue of our time, an absurdly narrow ruling — that you, too, can have equal marriage rights…but only if you hire Ted Olson and David Boies and litigate to the U.S. Supreme Court — would send a terrible message. It would frankly risk undermining public confidence in the legitimacy of the judiciary itself, and it’s difficult to imagine a judge reaching a conclusion like that.

TIMELINE OF SAN FRANCISCO’S BATTLE FOR MARRIAGE EQUALITY

As a reminder, we’ve posted online the complete chronology of major events in San Francisco’s long fight for marriage equality going back to February 2004, when Mayor Newsom first issued same-sex marriage licenses and the City Attorney’s Office defended his actions in doing so. It’s on the City Attorney’s website here.

The City Attorney’s Office has also issued a formal memo to relevant city offices to advise them about possible outcomes and next steps. Portions of that memo provide greater detail about our legal arguments should a standing ruling on Prop 8 result in further litigation.

Finally, Dennis Herrera, Chief Deputy Terry Stewart and I have been around for the whole battle right from the beginning — so we’re always happy to answer questions you may have. We’ve also been scheduling advance interviews with the City Attorney; if that’s something you’re interested in, just let me know.

Best,
MATT DORSEY
Press Secretary

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OFFICE OF CITY ATTORNEY DENNIS HERRERA
San Francisco City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682

(415) 554-4662 Direct
(415) 554-4700 Reception
(415) 554-4715 Facsimile
(415) 554-6770 TTY

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