BY ARTHUR S. LEONARD | A three-judge panel of the US Court of Appeals for the 9th Circuit, in San Francisco, heard oral arguments on December 6 on an attempt by the Proponents of California Proposition 8 and the Deputy Clerk of Imperial County to appeal US District Judge Vaughn R. Walker’s August 4 ruling striking down the 2008 voter initiative.
Perry v. Schwarzenegger originated in early 2009, during the same week that the California Supreme Court— which in May 2008 found a constitutional right to marriage by same-sex couples — ruled that Prop 8 had been validly enacted under state law. The American Foundation for Equal Rights filed its lawsuit in the US District Court for the Northern District of California, arguing that the voter initiative violated the 14th Amendment of the US Constitution, a proposition accepted by Walker after a lengthy period of pre-trial discovery and a trial that heard from numerous witnesses for the plaintiffs.
The plaintiffs, two same-sex couples who attempted to wed after the marriage ban took effect, are represented by two of the leading appellate attorneys in the US, Ted Olson and David Boies, who had clashed in the Supreme Court in 2000 as representatives of George W. Bush and Al Gore, respectively, in their court battle over the presidency.
Though Governor Arnold Schwarzenegger and Attorney General Jerry Brown, now California’s governor-elect, were named as defendants in the case, neither chose to argue for Prop 8. Both had opposed the measure, and Brown had questioned its constitutionality when the State Supreme Court reviewed the initiative in early 2009.
Judge Walker had allowed Prop 8’s official Proponents to intervene in the case in order that the statute be defended at trial, but he denied a motion by Imperial County to intervene as a governmental defendant.
The Proposition 8 proponents were represented by Charles Cooper, a skilled appellate attorney and long-time friend of Olson’s. However, the defendants presented only two expert witnesses, whose testimony in the end proved more helpful to the plaintiffs than their side.
Walker also allowed the City of San Francisco to intervene on behalf of the plaintiffs. Therese Stewart, a city appellate attorney, represented San Francisco, as she had in the original marriage litigation.
As soon as Walker issued his order nullifying Prop 8, its Proponents sought a stay pending appeal. In response, Boies and Olson argued that under Supreme Court precedents based on Article III of the Constitution, federal lawsuits must involve an actual “case or controversy” and those bringing actions in court must have a “personal, concrete, and particularized injury” at stake.
Their clients had standing to bring their suit, the two attorneys argued, because their right to marry, previously recognized by the California Supreme Court, had been unconstitutionally terminated by Prop 8. At the appellate level, the question is whether the party who is appealing the trial court’s ruling has the same Article III standing. The governor or attorney general, sued in their official capacities as representatives of the state government, would obviously have standing to defend a state constitutional provision.
Neither the Proponents nor the Imperial County Deputy Clerk’s office, Boies and Olson argued, enjoy such standing.
Walker denied the motion for a stay, commenting that the Boies-Olson argument about the standing of the Proponents and Imperial County was plausible, based on a US Supreme Court ruling that cast doubt on the Article III standing of proponents of an Arizona English language constitutional amendment to appeal a trial court ruling on its constitutionality after the state government defendants declined to appeal.
A 9th Circuit panel overruled Walker on the stay, but directed the parties seeking to appeal to address the question of standing.
The 9th Circuit panel that heard argument on December 6 was presided over by Judge Stephen Reinhardt, who was appointed to the court by President Jimmy Carter. The other two on the panel were Judge Michael Hawkins, an appointee of President Bill Clinton, and Judge N. Randy Smith, named to the bench by President George W. Bush. Reinhardt is generally regarded as a liberal, and Hawkins usually falls in that camp as well, while Smith is a conservative.
There was some chatter on the blogosphere about Smith’s education at Brigham Young University, and the anti-gay National Organization for Marriage launched a concerted effort to discredit Reinhardt, whose wife has served as executive director of the ACLU of Southern California.
In addressing the standing issue, attorney Cooper faced the difficult task of persuading the panel that this case was distinguishable from the Arizona case and others in which the Supreme Court questioned or denied the standing of non-governmental parties to defend a state law against a constitutional challenge.
He argued that while Justice Ruth Bader Ginsburg, writing for the Supreme Court, noted that the Arizona amendment proponents failed to present any evidence they were authorized under state law to defend that measure in court, the Prop 8 Proponents had in effect been recognized by the California Supreme Court as proper parties to defend it. Cooper also pointed to a New Jersey case in which the leaders of the Legislature were allowed to defend a state law on appeal after the named governmental defendants declined to do so.
Boies was effective in countering these arguments, pointing out that standing under California law and the federal Constitution are distinct questions, and that the Proponents of Proposition 8 could show no personal, concrete injury as required by the high court.
Smith asked whether under Boies’ argument the governor and attorney general, opposed to an initiative enacted by voters, in effect were able to veto it by declining to defend it in the federal courts. He insisted the only honest answer to this question was “yes,” and that such a situation was inconsistent with the California Constitution’s provision authorizing ballot initiatives. Boies conceded that might be so, but emphasized that the relevant question was Article III standing, not the California Constitution.
For his part, Cooper could not come up with anything more persuasive than the New Jersey case, in which those granted the right to appeal were high government officials, not private parties.
Attorney Robert Tyler, appearing on behalf of the Imperial County Deputy Clerk, faced a barrage of questions about why the County Clerk was not appearing on the appeal, and whether the Deputy Clerk was an appropriate party to represent the county, much less the state, in defending a state constitutional amendment. All three judges appeared very skeptical about the Deputy Clerk’s standing, noting that her function was merely to issue licenses created by the state government.
Once the standing arguments were completed, the panel turned to the merits of the case, which was what most viewers of the proceedings’ webcast were no doubt waiting for.
Cooper led off again. The appellants’ case rests heavily on the Supreme Court’s 1972 action in dismissing an appeal from a Minnesota court ruling in Baker v. Nelson. There, a gay male couple had sued the state over denial of a marriage license, and the State Supreme Court ruled there was no constitutional violation. When the couple turned to the US Supreme Court, the appeal was dismissed “for want of substantial federal question.”
Technically, this was a ruling on the merits. The plaintiffs had argued the right to marry was fundamental and that its denial on grounds of sex and sexual orientation violated both the Due Process and Equal Protection Clauses of the 14th Amendment. The couple relied on the high court’s 1967 ruling in Loving v. Virginia that a state ban on interracial marriage was unconstitutional.
The Supreme Court has never specifically overruled Baker, and Cooper argued the 9th Circuit panel was bound to follow it and that Judge Walker erred by refusing to do so. He also argued that earlier rulings by the 9th Circuit made clear that discrimination based on sexual orientation was subject to the least demanding level of judicial scrutiny — which required that the government provide only a rational explanation for differential treatment of gay and lesbian people. The state’s interest in preserving traditional different-sex marriage for its procreative purpose was sufficient, Cooper maintained.
Cooper was pressed on why, since California’s domestic partnership law already provides the state law rights of marriage to same-sex couples, the next rational step was not using the same word to identify their relationships? He insisted that the word marriage itself is “identical to the institution” and that the state’s purpose justified making the verbal distinction. He also trotted out the odd “accidental procreation” argument — that heterosexuals need marriage to steer unexpected children into stable homes — which, despite its illogic, has appealed to several state high courts around the nation, including New York’s, that have rejected same-sex marriage claims.
In their questions and facial expressions, Reinhardt and Hawkins appeared unpersuaded by Cooper. Judges occasionally play devil’s advocate during oral arguments, but the two judges’ skepticism was at times striking, as was on occasion even Smith’s.
Ted Olson argued on behalf of the plaintiffs, and did a very effective job of demolishing Cooper’s arguments. He maintained that California voters engraved discrimination on the basis of sex and sexual orientation into their fundamental governmental charter by passing Proposition 8, in violation of two key US Supreme Court rulings, Reitman v. Mulkey and Romer v. Evans — both cases involving state initiatives that took away rights previously conferred through state law and replaced them with discriminatory constitutional amendments. The high court struck down the amendments as violations of the 14th Amendment in both cases.
In Reitman, California voters dissatisfied with state laws banning racial discrimination in housing placed an amendment in the State Constitution invalidating the statutes. In Romer, Colorado voters overruled several local governments that had banned sexual orientation discrimination by placing an amendment in the State Constitution barring the state or any political subdivision from protecting gay people from discrimination. Olson argued that Proposition 8 effectively built a constitutional fence around marriage, excluding gay people and nobody else.
Olson also argued that the 1972 Baker v. Nelson’s precedent had been undermined by subsequent Supreme Court decisions on sex discrimination, sexual orientation discrimination, and the right of gay people to be free of state interference with their choice of intimate sexual partners. One could hardly argue, after decisions such as Romer v. Evans in 1996 and the 2003 Lawrence v. Texas ruling striking down that state’s Homosexual Sodomy Law, that the denial of marriage rights to same-sex couples no longer presented a “substantial federal question.”
Reinhardt confronted Olson with a critical question about the potential scope of a 9th Circuit ruling in this case. There are two ways the court might go if it were to find for plaintiffs on the merits. The narrower way would be to rule that Proposition 8 violated the 14th Amendment because it took away, on a discriminatory basis, a fundamental right under state law previously identified by the California Supreme Court and enjoyed by same-sex couples for some time leading up to the vote. The broader approach would be to rule that, under the 14th Amendment, same-sex couples have the same right to marry as different-sex couples, and that every state refusing to let them do so is in violation.
Given the Supreme Court’s direction that federal courts use the narrowest possible grounds for ruling in order to avoid unnecessarily taking on broader constitutional questions, Reinhardt asked whether the 9th Circuit needed to take on the broader question in order to rule. Olson responded that the court could rule for the plaintiffs and strike down Prop 8 without reaching the broader question, relying on the Romer precedent. But, he continued, if the court decided it had to reach the broader issue, it was clear that the state constitutional amendment enacted by Proposition 8 was unconstitutional.
Therese Stewart then provided a brief follow-up to Olson’s argument, concentrating on the sheer irrationality of Prop 8 in light of California law. The state, she argued, has, as a matter of policy, effectively disavowed the grounds on which the Proponents argue the exclusion of same-sex couples from marriage is rationally based.
Lifting language from the Romer decision, she also argued that the voter initiative, in amending the State Constitution’s equal protection clause to make gay people unequal to everybody else, is “inexplicable by anything but animus against the class” of people it targets. Evidence about the campaign strategy pursued by the Proponents showed it aimed to demean gay people and relegate them to an inferior status, to assist parents in sending the message to their children that there was something wrong with gay people, and to treat them as “others” rather than an equal part of the community.
In his brief rebuttal, Cooper argued that the 1972 Minnesota marriage challenge was distinguishable from the Loving interracial marriage ruling because of the inability of same-sex couples to procreate through ordinary sexual intercourse. The basis of fundamental right in marriage is procreation, he said.
The 9th Circuit panel is widely expected to rule relatively quickly, since a stay is in effect and if the court finds a constitutional violation, then every day the stay continues causes an irreparable injury — a deprivation of constitutional rights. And, if, as seems possible, the court finds that both the Proponents and Imperial County lack Article III standing, it should promptly dismiss the appeal after determining it lacks jurisdiction. Since the court agreed to “fast track” the case by holding oral argument just weeks after the appeal was filed, it seems likely that it would try to fast-track the decision as well.
Whichever side loses can petition for en banc review by an expanded panel of the 9th Circuit — a step likely to be granted given the significance of the case — and the ultimate losing party in the 9th Circuit could petition the US Supreme Court for review. Even the question of Article III standing by itself could provide a relatively strong basis for Supreme Court review.
My own impression of the argument was that the court could well decide the matter based on Article III standing grounds, which would dismiss the appeal, void the stay, and allow Walker’s order to go into effect.
If the court decides to recognize the Proponents’ standing — or, more improbably, the standing of the Deputy Clerk from Imperial County — and proceeds to the merits, my impression is it is likely to affirm Walker by at least a 2-1 vote, but most probably on the narrower of the two potential grounds. Such a narrow decision would be less likely to interest the Supreme Court.
A unanimous decision holding Proposition 8 unconstitutional would, of course, be stunning. More dramatic still would be a ruling finding that as a matter of constitutional law, same-sex couples have the same right to marry as different-sex couples.
For now, we wait.