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.