Dronenburg and Reasonableness

San Diego County Clerk Ernest Dronenburg filed a petition yesterday seeking to prevent California county clerks from issuing marriage licenses to same-sex couples until a set of legal issues have been clarified. A reporter from the Union-Tribune called me to discuss the filing, and I ended up being quoted for the idea that the filing was “reasonable” because of legal uncertainties, as a sort of counter-balance to an Aaron Caplan quote that the request will not not “go far.”

Both of which are, I think, correct — but in different ways. Due to the limits of the newspaper medium, a twenty-minute phone interview ended up condensed into a soundbite which — well, which may not seem reasonable. I suspect that this has to do with word limits and editors and the need for a news story with a particular narrative balance. (“I mostly agree with what the other guy said” is a boring article.) But here on blog, we can elaborate in more detail on exactly which ways the Dronenburg filing may or may not be reasonable.

It begins with the complicated procedural history of the case. To recap very briefly: The Federal District Court found Proposition 8 unconstitutional; the State of California declined to appeal; Prop 8 proponents appealed to the Ninth Circuit and then to the Supreme Court; and the Supreme Court last month found the entire appeals process invalid because appellants lacked standing. This opened up a set of questions about what effect the District Court ruling would have, since the appeal was found invalid.

The Ninth Circuit and the California Attorney General both assumed that the issue was open-and-shut: The District Court ruling on a constitutional matter had invalidated the unconstitutional state law, and this would apply statewide for all applicants. The Ninth Circuit quickly issued its order (not waiting the customary period), and the Attorney General directed clerks to begin issuing licenses accordingly.

However, there are some legitimate potential complications in implementing Perry. Note that these are not appeals; you don’t get to appeal from SCOTUS. Rather, they are complex procedural wrinkles in implementing the ruling.

First, there is is a federal remedies question about the exact statewide effect of Judge Walker’s ruling at the District Court. Does it cover everyone in the state, or merely the specific parties to the case? Proponents’ claim here seems unlikely to succeed, but the facts are complicated and the result may not be entirely clear. (For a detailed discussion this particular facet, see Vik Amar’s excellent analysis.)

Second, there is a potential state constitutional law issue raised by the language of California Constitution, Article III, Section 3.5. In fact, Proposition 8 proponents have been triumphantly touting Section 3.5’s language since the Perry opinion, arguing that the District Court lacked power to make any statewide determination that Proposition 8 was unconstitutional.

This claim seems questionable. Section 3.5 is primarily directed at administrative agencies, and I found no case law directly supporting proponents’ theory. In addition, proponents’ reading seems deeply flawed on policy grounds, as it would effectively give the State of California power to prevent any state statute from ever being ruled unconstitutional statewide, by simply declining to appeal federal district court rulings.

The Section 3.5 claim thus seems dubious at best on the merits. However, the state law issue here is sufficiently complex that it totally makes sense for a state official to seek clarification.

(It’s worth noting that Vik Amar also flagged this as a potential concern, in a blog post months ago. His conclusion then as to the applicability of Section 3.5, which seems spot-on to me: “It might, and it might not.”)

Thus, the ultimate details of implementing Perry are just a little more complicated than folks might have assumed. And the underlying legal issues may be magnified by the relatively quick action of the State and the Ninth Circuit. I do believe, as I told the U-T reporter, that it could be reasonable for a clerk to bring a petition on these issues; there is enough of a gap that an official could reasonably ask for clarification. (That’s the quote that made the paper.)

Is this particular filing a reasonable request for clarification, or is it an act of political theater? That’s a trickier question.

Petitioner’s counsel on the brief is a very conservative, religiously affiliated organization with a history of making sharply conservative legal claims. (The basic argument of their brief in Perry was that religious believers have a freedom-of-religion right not to have to interact with gay people in a way that might be seen as supporting homosexuality, and that therefore the lower court ruling violated the First Amendment.)

The specific brief here also includes several instances of broad social-policy and political-usurpation language that seem extraneous to the procedural issues. These indicia suggest that the filing may have been driven by organized political opposition to same-sex marriage, not just by an everyday clerk with a complicated (and maybe legitimate) question.

So, is the Dronenburg petition “reasonable”? This might just be an area where reasonable people can disagree.


1. For further related reading in law blogs, see Lyle Denniston (discussing the effects of this filing on other current cases) and Howard Wasserman (discussing federalism, remedies, and the importance of understanding the procedural issues).

2. An important aside: The small set of online conversations that I’ve seen so far about the Dronenburg petition have been dominated by very strongly expressed opinions about the underlying merits of marriage equality. Let’s be clear: As a legal matter, the specific claims raised in the petition have nothing to do with the merits of same-sex marriage as social policy. The petition is an entirely procedural filing about how to properly implement a federal ruling, and (absent a few unnecessary asides that have no legal effect) the brief could just as easily be about contracts for sardines. The usual culture-war soundbites are completely irrelevant to the specific legal issues raised in the petition. (Although as noted, they may be an underlying reason why the petition was filed at all.)

3. Please note that Dronenburg’s petition is not the same as the earlier emergency petition to the U.S. Supreme Court made by Proposition 8 proponents.

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4 Responses

  1. Ken Rhodes says:

    I’m confused by the timeline, juxtaposed with what sounds like “be patient; details need to be worked out.” I think your brief recap of the complicated procedural history doesn’t go back far enough.

    At some time (presumably, quite a while ago) county clerks in California were issuing, or were ready to issue, marriage licenses to same-sex couples. They were stopped from doing so. In your recap, you state that the Federal District Court found Proposition 8 unconstitutional. Since you mention that as the first step in your recap, I assume it was Proposition 8 that stopped the issue of the licenses at that time. And presumably, once that Proposition 8 had been declared unconstitutional, the clerks could begin issuing the licenses, perhaps after some “customary waiting period.”

    Then the finding of the District Court was appealed. This put the issuance of the licenses back on hold. Finally, after a long lapse of time, SCOTUS ruled that the appealers had not the standing to do so, which thereby left the ruling of the District Court intact.

    Now here’s what bothers me. At some long-ago time, the Ninth Circuit quickly issued its order (not waiting the customary period). OK, let’s stipulate that there was a customary waiting period of some unspecified length, and that it should have been observed. But that was then and this is now. How long are the applicants for licenses supposed to wait out the delaying tactics of their tormentors? How many times do those tormentors get to continue to reset the clock back to zero?

  2. JamesInCA says:

    Ken Rhodes —

    The history isn’t quite as complicated as that.

    County clerks issued marriage licenses to same-sex couples for the first time in 2008, after the state Supreme Court found the existing law prohibiting SSM unconstitutional. Approximately 18,000 couples were married from May/June 2008 to November 2008, when Prop 8 passed and took immediate effect. Those were the only same-sex marriages that occurred prior to their resumption last month.

    The federal district and circuit court rulings found Prop 8 unconstitutional under the U.S. Constitution, but both courts stayed their rulings until the appeals process could be completed.

    After the U.S. Supreme Court vacated the Ninth Circuit’s ruling this June 26, the issuance of marriage licenses was prevented only by the Ninth Circuit’s stay of the district court ruling. The Ninth Circuit opted to lift that stay more quickly than is typically the case. The Governor and CA Attorney General had already issued directions to state and county agencies to resume issuing marriage licenses when the stay was lifted, and so those agencies did so.

  3. y_p_w says:

    The response by the CA Attorney General already mentioned the Fenske v. Board of Administration case of 1980. The AG’s office argued that Article III, Section 3.5 of the CA Constitution didn’t apply to a federal court order. The 1980 precedent was an appellate court ruling that stated that a CA Superior Court order still had to be followed by state agencies.


    “The Board contends that section 3.5 divests the superior court of jurisdiction to rule on the constitutionality of statutes governing administrative agencies. Consequently, the Board asserts that this court should adopt a procedure that a petitioner who has completed the administrative process and is still aggrieved should be authorized to bypass the superior court and petition directly in the Court of Appeal when an issue of constitutionality still remains. We disagree. While jurisdiction could have been given to a court other than the superior court, that was not the purpose of section 3.5. The power of the administrative agency, not the power of the superior court, is the subject matter of section 3.5. Section 3.5 did not deprive the superior court of its power to declare a statute unconstitutional. The power of the judiciary to declare laws unconstitutional is firmly entrenched as a basic principle of our government (see Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137 [2 L.Ed. 60]; 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 42, pp. 3280-3281). In the instant case the superior court, not the administrative agency, declared the statute unconstitutional. When a superior court issues a writ directed to an administrative agency to not enforce a statute because it is unconstitutional as it relates to an individual petitioner, or class of petitioners, the administrative agency must obey that mandate.”

    ** **

    It’s clear to me what this means. It means that if an “administrative agency” believes a statute is unconstitutional or violates federal law, it should petition a California appellate court to declare that law void. However, it doesn’t prevent non-agencies or private parties from petitioning in a California Superior Court or any federal court.

  4. Michael Ejercito says:

    Of one thing there is no doubt- the injunction requires the clerks of Los Angeles and Alameda Counties to issue marriages licenses to the Perry plaintiffs. Article III, Section 3.5 does not apply to that particular act.

    The clerks who were not parties in the Perry case would not be precluded from raising the constitutionality of Proposition 8 in a different court. Federal district court decisions are only binding on the parties of the litigation, and has no precedetial effect on other courts. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430 n.10 (1996). , Starbuck v. City and County of San Francisco (9th Cir. 1977) 556 F.2d 450, 457, fn. 13, Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) , Bank of Marin v. England, 352 F.2d 186, 189 n.1 (9th Cir. 1965), Martin v. Wilks, 490 U.S. 775 (1989), Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). See also United States v. Windsor, dis. op. of Scalia, J., at 5, No. 23-307 (Jun. 26, 2013) (noting that district court rulings have no precedential effectg on other courts)