Constitution Check: Are new California same-sex marriages on shaky legal ground?

samesex0531twoiconsLyle Denniston examines the attempts at blocking same-sex marriages in California after the Supreme Court’s Proposition 8 decision, and why decisive action from Justice Anthony Kennedy ended the debate, for now.


“Rule of law bypassed in Prop. 8 case: Supreme Court leaves in place premature 9th Circuit order against Prop. 8.”

 – Headline on a news release June 30, by the Alliance Defending Freedom, an advocacy organization involved in the legal defense of California’s “Proposition 8” ban on same-sex marriage.  The release briefly described Justice Anthony M. Kennedy’s Sunday order refusing to block such marriages.

“It would appear that the desire to impose same-sex marriage by some public officials trumps integrity, fairness, propriety, and even the rule of law. All Americans should be outraged….Despite the circus that is playing out in California, we will not be deterred from our goal of preserving marriage as it was designed and intended by its Creator.”

 – Brian Brown, president of the National Organization  for Marriage, an advocacy group that opposes same-sex marriage, in a statement June 28.


The new opportunity for same-sex couples to get married in California was surrounded with constitutional issues, but the intense final round of activity that made those marriages a reality had very little to do with the Constitution.   Heavy controversy hung over the first such marriage ceremonies performed beginning last Friday night, but it is very unlikely that the legality of the marriages remains in question.

What actually led to the first ceremonies, first in San Francisco and then in Los Angeles, was an order by the Ninth U.S. Circuit Court of Appeals on Friday afternoon that some of the harsher critics have called “lawless.”  In non-legal terms, it put into full effect an August 2010 decision by a federal judge that struck down the state’s “Proposition 8” ban on same-sex marriages.  That decision had been on hold while the constitutional controversy over the ballot measure worked its way up to and through the Supreme Court.

Most people, including most legal experts, had assumed that the judge’s decision would remain on hold for perhaps three more weeks for procedural reasons (incidentally, those reasons are not constitutional in nature).  But the Ninth Circuit Court did not wait, so the marriages began.  The first ceremonies, symbolically, involved the two gay and lesbian couples who had successfully challenged “Proposition 8” in federal court.

At that point, late in the evening Friday, it appeared that the legal jousting over gay and lesbian weddings in America’s most populous state was over.   But the supporters of “Proposition 8,” who had failed to persuade the Supreme Court to let them defend their measure against the judge’s 2010 decision, were not yet finished.

On Saturday, they asked Supreme Court Justice Anthony M. Kennedy, who handles emergency legal filings from California and other western states, to order the Ninth Circuit Court to put back into effect its hold on the marital right.   They argued that the Supreme Court would not put into effect for 25 days its decision rebuffing their efforts to defend “Proposition 8,” so the Ninth Circuit Court would have no legal authority to do anything until those 25 days had lapsed.

They attempted to make a constitutional argument: that is, that the lower courts simply had no jurisdiction to act until the Supreme Court formally cleared the way for them to act.   A federal court’s jurisdiction is, indeed, usually a constitutional matter, under Article III.

The legal reality, though, is that they were relying only on a Supreme Court rule, not the Constitution, in challenging the Ninth Circuit Court’s maneuver.   The 25 days that usually pass before the Supreme Court puts one of its rulings into formal effect is usually followed, but not always, and it exists independently of court jurisdiction.  In fact, it might be described as simply a rule for judicial convenience.  The Justices have the authority to put their decisions into effect immediately, and they have done so in the past.   They also can shorten the time, to just a few days, if they wish.

By midday Sunday, Justice Kennedy had not acted on the emergency challenge, and some may have begun to wonder whether the marriages that had been occurring over the past couple of days would have to be undone, and that others already planned could not go forward.  There was some anxiety in California as the time passed, and lawyers for some of these couples pondered whether they would have to go to work to fend off the new challenge.   If some did fear that, it was a misplaced fear, as it turned out.

Treating this last-minute challenge as very routine, Kennedy rejected it, and did so without giving any explanation.  There could have been several legal explanations, but the fact that he felt no need to spell out any of them made it appear that the request had been futile from the outset.

This series of legal maneuverings is what sometimes follows a major court ruling, as its implementation begins to engage the dueling efforts of rival legal teams.  When that does happen, it may appear to be submerging the ruling itself into lawyer’s minutiae.   What it does suggest, sometimes, is that lawyers and their clients have a hard time giving up a fight, even after they have lost.

As for the new marriages performed in the last few days in California, the maneuverings probably will become little more than a footnote in the history of those days.  Gay marriage has arrived in the Golden State, and those who are tying the knot under that now-fully-effective 2010 court decision, left undisturbed by the Supreme Court, can probably look forward to living happily ever after.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Recent Constitution Daily Stories

The Next 10 Amendments: A constitutional amendment to define marriage?

A look back at Justice Sandra Day O’Connor’s court legacy

Justice Elena Kagan talks about privacy cases, hunting with Scalia