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The fate of same-gender marriage in California after Perry

Back before the oral arguments in Perry, I wrote a post explaining what might happen to same-sex marriage in California if the Supreme Court were to hold that the Proposition 8 sponsors did not have standing to appeal from Judge Vaughn Walker’s judgment of August 4, 2010.

Now that that is indeed what has happened, what does it mean for the marriage rights of same-sex couples in California?

The Supreme Court concluded that the judgment of the Ninth Circuit must be vacated, and remanded the case to the court of appeals “with instructions to dismiss the appeal for lack of jurisdiction.” What about the district court judgment, however? In my previous post, I surmised that perhaps the Supreme Court would say something about the proper scope or application of the trial court’s judgment in the event the Court vacated the court of appeals’ decision. Not so: the Court majority is silent on the question of how Judge Walker’s injunction should be applied. Notably, however, in his dissenting opinion Justice Kennedy wrote that “the Court’s opinion today means that a single district court can make a decision with far-reaching effects that cannot be reviewed.”

Judge Walker’s injunction — see page 136 of his opinion —therefore remains unchanged by the Supreme Court’s decision; it is in effect the law of the case. What does this mean, as a practical matter, for same-sex marriages in California? Let’s take the relevant questions in turn.

To read the full blog post, click HERE.