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December 06, 2010

Slugfest on gay marriage (and standing) in 9th Circuit

The long-awaited oral argument in Perry v. Schwarzenegger just concluded before the Ninth Circuit, and we all now begin what I expect will become an even longer wait for a decision.  Who won? To my hearing (via radio), it's hard to imagine that any judge's inclination on the merits of whether Prop 8 is constitutional was altered by the arguments they heard. The argument may have had a bigger impact on how the court will rule (or defer ruling) on standing than on the judges' view of the merits.

Judges Reinhardt, Hawkins and Smith peppered both sides with sharp questions, and both sides acquitted themselves reasonably well. With a caveat that I'm writing without time for reflection, here are the main points that the argument brought to light:

Most significant to the standing point, which was argued first, Judge Reinhardt strongly suggested that he was inclined to certify a question to the California Supreme Court to help resolve whether the proponents of Prop 8 had standing to appeal Judge Walker's order. That means that the Ninth Circuit will suspend its consideration of the issues until the California Supreme Court answers the question of whether, under state law, the proponents of a ballot initiative would have standing to defend it in a context in which state officials decline to do so. (Generally, private citizens lack standing to participate as a defendant in a challenge to a law, but here both the governor and AG opted not to appeal Walker's decision.) If I had to bet on what the next stage in this saga will be, I would bet that this part of the case will be referred to the state supreme court. (This is not unusual when a federal court has to resolve the meaning of a state law in order to get to the federal question in the case.)

I (as a procedure nerd) found it fascinating when the plaintiffs' lawyers acknowledged that Judge Walker's injunction would apply to only the two county clerks named as defendants, leaving all other county clerks free to deny marriage licenses to same-sex couples. The judges seemed surprised to hear this and skeptical about the plaintiffs' further point that Judge Walker's injunction would be enforced by the governor and attorney general going into state court to get an additional order compelling any dissident clerks to abide by their interpretation of state law. (This exchange also suggested another way that the outcome of the election could have altered the status of marriage rights in CA: even if the injunction went into effect, it could have been torpedoed by a governor and attorney general opposed to same-sex marriage and unwilling to seek an order forcing any county clerks opposed to the injunction to obey it.)

On the merits, the most important exchanges related to whether the court could determine the constitutionality of only Prop 8, that is, without reaching the question of whether bars to same-sex marriage in other states would be unconstitutional. Asked the direct question of whether the court could avoid ruling as to other states, Ted Olson said yes, although he added that the decision he wanted would be on broader grounds. If I had to bet on the merits, my money would be on a decision affirming the district court that applies only to California, and based on reasoning so limited to California that it would not be binding on any other state, even the other states within the Ninth Circuit. In my opinion, that would be the best possible outcome in this case, since it would make it possible that the Supreme Court would decline to review it at all.

In questioning Charles Cooper, who represented the Prop 8 proponents, Judges Reinhardt and Hawkins both alluded to the equal protection standard used by Justice O'Connor in her concurrence in Lawrence: a rational basis with bite standard, that subjects laws to more searching scrutiny when there are indications that the laws were motivated by bias. If the Ninth Circuit panel ultimately adopts this standard in Perry, it would be the first appellate court to follow O'Connor's lead, but I think many others could follow. The O'Connor concurrence was, in effect, an explanation in more concrete terms of the Court's rather porous decision in Romer. The panel's decision on the merits - if and when the merits are reached - will be an important interpretation of the power of Romer, which - doctrinally - will also be the likely focus of the First Circuit's opinion in Gill v. OPM. (Gill has not yet been briefed or argued in the Court of Appeals.)

You can watch the video and read an uncorrected transcript here.

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you wrote:

That means that the Ninth Circuit will suspend its consideration of the issues until the California Supreme Court answers the question of whether, under state law, the proponents of a ballot initiative would have standing to defend Prop 8 in a context in which the state officials decline to defend it. If I had to bet on what the next stage in this saga would be, I would bet that this part of the case will be referred to the state supreme court. (This is not an unusual procedure when a federal court has to resolve the meaning of a state law in order to get to the federal question in the case.)


i'm wondering what the justification for doing this is if the case is about standing in front of a federal court; why ask about standing in front of a state court?

also, if this panel of judges finds that both imperial county and the prop 8 proponents lack standing, and that one or both these parties go to the full 9th circuit and/or the scotus, and that they are ultimately found to have standing, and that their case is sent back for resolution to the lower court, would it be this same panel of judges or would other judges be assigned to the case?

Much of the plaintiffs' argument that the proponents lack standing is based on Arizonans for Official English v. Arizona, 520 US 43 (1997). That case touched on whether an organization that had sponsored a ballot initiative had standing to defend it. There are differences as well as similarities between that case and Perry, but the Supreme Court's analysis suggested that the group's claim for standing would be strengthened if it could show that there was a basis in state law for it to defend a law when state officials declined to do so. Following is the relevant paragraph from the short summary; the last sentence is the key. (You can read the full decision at http://www.law.cornell.edu/supct/html/95-974.ZS.html) -

"Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, and absent anything in Article XXVIII's state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court..."

Yes, cases on remand from the Supreme Court are heard by the original panel. However, if there is an intervening rehearing en banc, the case will be reheard by the en banc panel.

oh i see. thanks for the explanation.
what about the panel question? would it be the same panel that gets to look at the merits of the case if the pro-prop8 side is found to not have standing at this level, but is then on appeal found to have standing (by the full 9th circuit court or the scotus)?

thanks again. and one last question. can the appellate court, if it finds there is no standing, simply vacate the lower court's ruling, as opposed to letting it stand?

Thanks for the great summary.

I am intrigued by your difference with Olson and Boies on whether the decision should be broad or narrow. You write: "If I had to bet on the merits, my money would be on a decision affirming the district court that applies only to California, and based on reasoning so limited to California that it would not be binding on any other state, even the other states within the Ninth Circuit. In my opinion, that would be the best possible outcome in this case, since it would make it possible that the Supreme Court would decline to review it at all."

Can you elaborate on why you fear a Supreme Court review? Is it because of the uncertainty inherent in such a review or do you think that the Supreme will rule against marriage equality? I think (or, more accurately, HOPE) that there are 5 votes on the Supreme Court for marriage equality now. You apparently are skeptical. Do you fear that an adverse ruling will halt the progress we have made in federal courts generally?

My quick answer is yes. I am VERY skeptical that there are 5 votes now for marriage equality, although I can see 5 votes if the ruling is only as to California. Even then, it's going to be quite a lift. I hope that's wrong, but I think that's right.

would it be possible for the appellate court, if it finds there is no standing, to simply vacate the lower court's ruling, as opposed to letting it stand? i read something to that effect in the wall street journal, but nowhere else...

Nan, this is interesting, and I agree with your conclusion of a seeming trend towards making sure the ruling applies only to the facts in California. I just said this at P8TT before reading your piece. Briefly, I was focusing on Smith and guessing that he might try to join the majority (Reinhardt and Hawkins) in order to gain leverage to move their decision towards applying only to California. He seemed to focus on the issue of California's other laws quite a bit (e.g.: “What is the rational basis then if homosexuals have all the rights heterosexual couples have?” Smith asked. “We’re left with a word: marriage.”) It hadn't occurred to me, as you have argued here, that Reinhardt and Hawkins might be inclined to that direction anyhow.

My concern is that if they say that the rational basis failure necessarily springs from same-sex couples having been substantively equal to opposite-sex couples under California law, this could create a perverse incentive in other states to not make baby steps moves towards equality. For example, as reported at Box Turtle Bulletin in Utah there have been hopeful signs towards non-discrimination laws of late. Now, these tepid laws narrowly related to housing and employment probably wouldn't trigger a ruling that relies on 100% equality except for the word "marriage." But still, I fear it could create fear in other states of moving any further in that direction. What do you think?

Hm, I had two links in my comment (to P8TT and Box Turtle Bulletin) that aren't showing up. That's fine, but if you are wondering why I bothered to say, "as reported at Box Turtle Bullentin," it is because that was the link part. :)

Thanks for your explanation, hunter of Justice. If the court concludes that the defendants do not have standing, can it strike down proposition 8 on it's merits?

My concern is that if they say that the rational basis failure necessarily springs from same-sex couples having been substantively equal to opposite-sex couples under California law, this could create a perverse incentive in other states to not make baby steps moves towards equality.
Futhermore, such a ruling would imply that Proposition 8 would be constitutional if further legislation were enacted to deprive same-sex couples of domestic partnership rights.

In Crawford v. Los Angeles Board of Education, the Supreme Court stated that "certainly the purposes of the Fourteenth Amendment would not be advanced by an interpretation that discouraged the States from providing greater protection to racial minorities." Also, they stated that they "would not interpret the Fourteenth Amendment to require the people of a State to adhere to a judicial construction of their State Constitution when that Constitution itself vests final authority in the people."

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