The Proposition 8 Argument In The 9th Circuit On December 6

From Leonard Link and Alliance Defense Fund:

The Proposition 8 Argument in the 9th Circuit on December 6


A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, heard oral arguments on Monday, December 6, on an attempt by the Proponents of California Proposition 8 and the Deputy Clerk of Imperial County, California, to appeal U.S. District Judge Vaughn R. Walker’s August 4 ruling in Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D.Cal.), and the ensuing Order directing the defendants to treat the state constitutional amendment created by Proposition 8 as a nullity.



Proposition 8 was approved by California voters during the 2008 general election, placing in the California Constitution a provision that only the marriage of one man and one woman would be valid or recognized in California. Its enactment cut short a period of just under six months during which same-sex couples could marry in California as a result of the California Supreme Court’s decision in the Marriage Cases. The California Supreme Court subsequently ruled that Proposition 8 had been validly enacted as a matter of state law, but that it left intact California domestic partnerships carrying the state law rights of marriage, and that the same-sex marriages contracted prior to Election Day remained valid as well.



During the same week that the California Supreme Court upheld the validity of Proposition 8's enactment, the American Foundation for Equal Rights filed its lawsuit in the U.S. District Court for the Northern District of California, arguing that the enactment of Proposition 8 violated the 14th Amendment of the United States Constitution, a proposition accepted by Judge Walker in his August 4 ruling, which came after a lengthy period of pre-trial discovery and a trial that heard from numerous witnesses for the plaintiffs. The named plaintiffs, two same-sex couples who sought to marry after Proposition 8 was enacted, were represented by two of the leading appellate attorneys in the United States, 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 contest over the result of the presidential election.



Although the named defendants were Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and certain other state officials charged with overseeing the administration of the marriage law of the state, none of these defendants presented any defense to Proposition 8. The Governor and Attorney General had opposed its enactment, and Attorney General Brown had questioned its constitutionality in the California Supreme Court proceeding that upheld its enactment. The official proponents of Proposition 8 were permitted by Judge Walker to intervene as defendants in order to provide a defense to the statute 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). The defendants presented only two expert witnesses, whose testimony in the end proved more helpful to the plaintiffs than the defendants. Judge Walker also allowed the City of San Francisco to intervene on behalf of the plaintiffs, and they were represented, as the city had been represented in the original marriage litigation, by a city appellate attorney, Therese Stewart.



As soon as Judge Walker issued his Order in the case, Proponents of Proposition 8 sought to have it stayed pending appeal. Opposing the stay, Boies and Olson argued that Proponents did not have Article III standing to appeal without the participation of the official defendants in the case. Article III, Section 2 of the Constitution sets out the “judicial power” of federal courts, which “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Law of the United States, and Treaties made, or which shall be made, under their Authority.”



In construing the limits of federal judicial power, the Supreme Court has ruled that the reference to “cases” in Article III mean that only an actual “case or controversy” comes within the jurisdiction of the courts. That means that a federal lawsuit can only be brought by an individual or entity that has a real, substantial, concrete personal interest that is affected by the case. As Boies described it in his oral argument on December 6, the Supreme Court has ruled that only a plaintiff with a “personal, concrete and particularized injury” to be redressed has “standing” under Article III to bring a case.



In this Proposition 8 case, formally known as Perry v. Schwarzenegger, the plaintiffs had Article III standing because they were claiming that their right to marry, previously recognized by the California Supreme Court, had been unconstitutionally terminated by the enactment of Proposition 8. The key question at the trial level is whether the plaintiff has standing to bring the case.



At the appellate level, the question is whether the party who is appealing the trial court’s ruling has standing under Article III to bring the case to the Court of Appeals. If the plaintiffs had lost before Judge Walker, they obviously would have standing to appeal. But they won, and the official defendants in the case, the governor, the attorney general, and the other state officials charged with enforcing the marriage laws, who were sued in their official capacities as representatives of the state government and would obviously have standing to defend a state constitutional provision on behalf of the state, decided not to appeal. Boies and Olson were suggesting that the Proponents of Proposition 8, who sought to appeal, did not have Article III standing because they did not have any “personal, concrete and particularized” injury as a result of Judge Walker’s decision to strike down Proposition 8.



When Imperial County’s Board of Supervisors voted to try to intervene as Appellants, and the deputy county clerk authorized that an appeal be filed in her name, Boies and Olson made the same argument. The deputy clerk claimed that as a local official who issued marriage licenses, she was personally affected because under Judge Walker’s Order she would have to resume issuing licenses to same-sex couples.



Judge Walker denied the motion for stay, and commented in his denial opinion that the argument against standing by the applicants for the stay was a plausible one, based on a U.S. 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 the constitutionality of the amendment, when the state government defendants in that case had decided not to appeal. Subsequently, the motion panel of the 9th Circuit granted the stay application, but directed that the appellants address the standing issue in their brief on the merits.



The 9th Circuit panel that heard argument on December 6 was presided over by Judge Stephen Reinhardt, the most senior member of the panel, who was appointed to the court by President Jimmy Carter. The other judges were Judge Michael Hawkins, an appointee of President Bill Clinton who is actually on Senior Judge status, and Judge N. Randy Smith, who was appointed by George W. Bush. To the extent these labels mean anything, Judge Reinhardt is generally regarded as a liberal, Judge Hawkins also usually falls in that camp, and Judge Smith is a conservative. I’ve described the judges in more detail in a prior posting on this blog.



The first hour of the December 6 argument was devoted entirely to the issue of appellants’ standing, and Cooper faced the difficult task of persuading the panel that this case was distinguishable from the Arizona case and other cases in which the Supreme Court had cast doubt on the standing of non-governmental parties to defend a state law against a constitutional challenge in the federal courts. He focused on a comment by Justice Ruth Bader Ginsburg, writing for the Supreme Court, that the Arizona amendment proponents had failed to present any evidence that they were authorized under Arizona law to defend the amendment in court. Cooper argued that the California Supreme Court had in effect recognized the Prop 8 Proponents as proper parties to defend the amendment when they were allowed to participate in the arguments before that court over the validity of its enactment – arguments in which neither the governor nor the attorney general were supporting Prop 8, and the attorney general was actually actively opposing its constitutionality.



Cooper also relied heavily on a case from New Jersey in which the leaders of the two houses of the legislature were allowed to defend a state law on appeal after the named governmental defendants declined to do so.



Boies effectively countered these arguments, pointing out that the questions of standing under California law and the federal constitution are distinctly different questions, and that the Proponents of Proposition 8, despite their policy interests in upholding the initiative that they proposed and fought to enact, did not have any personal, concrete and particularized injury as required by the Supreme Court’s precedents. Judge Smith asked whether under Boies’s argument a governor and attorney general who were opposed to an initiative that the people had enacted could, in effect, veto it by declining to defend it in the federal courts, since nobody else would have standing to defend it. He insisted the only honest answer to this question was “yes”, and it seemed inconsistent with the California Constitution’s provision authorizing the people to amend the constitution through the initiative process.



This might be so, rejoined Boies, but nonetheless the question before the court was Article III standing, which depended on the factors enunciated by the U.S. Supreme Court. When pressed for precedents supporting his position, Cooper could not come up with anything more persuasive than the New Jersey case, in which the appellants were high government officials, not private parties. Judge Reinhardt asked whether it might be appropriate to certify a question to the California Supreme Court about whether the Proponents were actually authorized by California law to represent the state in defending their initiative, in light of Justice Ginsburg’s statement in the Arizona case that the proponents there had failed to present any Arizona law authorizing them to represent the state. Boies countered that the opinion of the California Supreme Court on that question could be sought, but the answer was really irrelevant to the fundamental requirements spelled out by the U.S. Supreme Court in its standing decisions.



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. It appears that all three judges on the panel were very skeptical about the standing of the deputy clerk to be in the case, noting that her function was purely ministerial and that it was up to state officials to supervise the issuance of marriage licenses by county clerks.



There was also some questioning to Boies about why the plaintiffs had not sought to name all the county clerks as defendants, just having named the Alameda and Los Angeles County clerks. The short answer, which somehow Boies never directly articulated, was that the plaintiffs obtained standing by seeking licenses from and being turned down by those two county clerks, but that actually naming local clerks as defendants was not really necessary, since the constitutional challenge involved a state constitutional amendment. Naming the state officials charged with enforcing the state marriage law would be sufficient for the purpose of getting an effective remedy in the form of an Order to those officials not to enforce the constitutional amendment. The back and forth between bench and counsel on these points used up lots time during Boies’ argument.



After a short break, the panel reconvened to hear arguments on the merits, just in case it decided that it actually did have jurisdiction over the appeal. This was the part of the argument that most viewers of the national telecast were undoubtedly waiting for, and there were plenty of fireworks.



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 the case of Baker v. Nelson. A gay male couple had sued the state over denial of a marriage license, and the state’s supreme court ruled that there was no constitutional violation. They applied to the Supreme Court for review. In those days, the rule was that the Supreme Court had to rule on appeals from decisions of state supreme courts denying federal constitutional challenges to state laws, but the Supreme Court frequently cut short the process by dismissing an appeal “for want of substantial federal question,” which is what they did in this case. Technically, this was a ruling by the Supreme Court on the merits, holding that the constitutional challenge to Minnesota’s refusal to issue a marriage license to Richard Baker and James McConnell did not raise any substantial federal constitutional issue. Baker and McConnell had argued that the right to marry was a fundamental right and its denial on grounds of sex and sexual orientation violated both the Due Process and Equal Protection Clauses of the 14th Amendment, relying on the Supreme Court’s ruling in Loving v. Virginia that a state ban on interracial marriage was unconstitutional.



Technically, the Supreme Court has never since overruled Baker. Cooper argued that 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 only to the least demanding rationality review by the court, and that the state’s interest in preserving traditional different-sex marriage for its procreative purpose was sufficient to justify limiting marriage to same-sex couples.



Cooper was pressed on the point that California’s domestic partnership law already provides the state law rights of marriage to same-sex couples, so what was the rationale for not going the next step and using the same word to identify their relationships? (Indeed, the California Supreme Court stated in its opinion upholding the validity of Proposition 8 that it merely required that the word “marriage” be withheld from same-sex relationships, and had no effect on the substance of that court’s marriage decision holding that same-sex couples are entitled to the same rights and benefits of marriage as different-sex couples.) Cooper 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 which, despite its illogic, has appealed to several courts that have rejected same-sex marriage claims.



It appeared from questioning and facial expressions that Cooper did not really convince either Judge Reinhardt or Judge Hawkins with these arguments. It is difficult to predict results from oral argument, since judges occasionally play “devil’s advocate” in their questioning and strive to achieve a neutral demeanor on the bench, but the skepticism with which Cooper’s arguments were received, even sometimes from Judge Smith, was striking.



Ted Olson argued on behalf of the plaintiffs, and did a very effective job of demolishing all of Cooper’s arguments. He argued that California voters had engraved discrimination on the basis of sex and sexual orientation in their fundamental governmental charter by passing Proposition 8, in violation of two key U.S. Supreme Court rulings, Reitman v. Mulkey and Romer v. Evans, both cases involving situations where state initiatives resulted in taking away rights previously conferred through state law and replacing them with discriminatory amendments in state constitutions, only to be struck down by the U.S. Supreme Court as violations of the 14th Amendment.



In Reitman, California voters dissatisfied with state laws banning race discrimination in housing placed an amendment in the state constitution invalidating such laws. 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. He said that Proposition 8 was afflicted with the same constitutional vice as Colorado Amendment 2, providing a vehicle for the voters of the state to enact discrimination in their constitution and take away important rights that had previously been recognized under the law.



Furthermore, he argued, Baker v. Nelson’s precedential value had been undermined by the Supreme Court’s subsequent 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. Baker predated a substantial body of Supreme Court precedents under the 14th Amendment, and one could hardly argue after decisions such as Romer v. Evans and Lawrence v. Texas (the 2003 ruling striking down the Texas Homosexual Sodomy Law), that the denial of marriage rights to same-sex couples no longer presented a “substantial federal question.”



Although Olson did not refer to this explicitly in his argument, no less a conservative than Supreme Court Justice Antonin Scalia, in his dissenting opinion in Lawrence, exclaimed that the reasoning of the Court’s opinion would open the door to constitutional claims for same-sex marriage, and so it proved when the Massachusetts Supreme Judicial Court, later that year, cited Lawrence in its Goodridge ruling, the first state high court decision in the United States to hold that same-sex couples were entitled to marry.



Reinhardt confronted Olson with an important question about the potential scope of the 9th Circuit’s ruling in this case. There are two ways the court might go if it were to rule 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 that had been previously identified by the California Supreme Court and enjoyed by same-sex couples in California for some time leading up to the vote; this ruling would characterize the enactment of Proposition 8 as a discriminatory act because of the nature of its enactment. The broader way would be to rule that under the 14th Amendment same-sex couples have the same right to marry as different-sex couples, and every state that refuses to let same-sex couples marry is in violation of the 14th Amendment.



Reinhardt asked whether the court needed to reach the broader question to rule on this case, in light of the general command from the Supreme Court that federal courts should use the narrowest possible grounds for ruling in order to avoid unnecessarily taking on broader constitutional questions. Olson argued that the court could rule for the plaintiffs and strike down Prop 8 without reaching the broader question. The court could rely on Romer and hold that a vote taking away a state constitutional right to marry from gay people just because they are gay people and for no other valid reason is a violation of the Equal Protection Clause, regardless whether there is a broader federal constitutional right for same-sex couples to marry. 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 Proposition 8 in light of the context of California law, under which the state has, as a matter of policy, effectively disavowed the grounds upon which the Proponents relied to argue that there was a rational basis for excluding same-sex couples from marriage. She also argued that Proposition 8 had the effect of amending the state constitution’s equal protection clause to make gay people unequal to everybody else, lifting language from the Romer decision to argue that Proposition 8 is “inexplicable by anything but animus against the class” of people it targets. Indeed, evidence about the campaign strategy pursued by the Proponents was that the campaign was intended 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 key distinction between same-sex couples and different-sex couples, the inability to procreate through ordinary sexual intercourse between each other, was the key difference between Loving v. Virginia (the Supreme Court’s interracial marriage case) and Baker v. Nelson. He argued that if same-sex couples could procreate, then Baker would have come out differently, because the basis of the fundamental right in marriage is procreation.



The court gave no indication at the conclusion of the argument about when they would rule, but it was widely expected that the decision would come relatively quickly, since a stay is in effect and if the court finds a constitutional violation, then every day the stay continues works an irreparable injury – a deprivation of constitutional rights. Also, if, as seems possible, the court finds that the appellants lack Article III standing, it should promptly dismiss the appeal upon determining that it lacks jurisdiction over the case. Since the court agreed to “fast track” the case by holding oral argument just weeks after the appeal was filed and brief, it seems likely that the court would try to fast-track the decision as well.



But that doesn’t necessarily mean speedy finality, because whichever side loses can petition for en banc review (by an expanded panel of the 9th Circuit, which is likely to be granted given the significance and notoriety of the case), and the ultimate losing party in the 9th Circuit could petition the U.S. Supreme Court to review the case. Even the Article III standing question by itself could be a relatively strong basis for Supreme Court review, since Justice Ginsburg’s comments about proponents’ lack of Article III standing in the Arizona case could be characterized as “dicta” rather than “holding” (i.e., not necessary for the Court’s disposition of that case on the merits), leaving an arguably open important question for the Court to resolve on a recurring issue of federal jurisdictional law.



My own impression of the argument was that the court might well dispose of the appeal on Article III standing grounds, which would dismiss the appeal, dissolve the stay, and allow Judge Walker’s Order to go into effect. In response to a question from the bench, Boies indicated that the court might have authority “sua sponte” to tinker with Judge Walker’s Order even if it lacks jurisdiction over the appeal, but I find that proposition doubtful. If the court lacks jurisdiction, what authority could it have to do anything further with the case than dismiss the appeal? I also don’t think much of Proponent’s argument that such a decision would require vacating Judge Walker’s decision as well, since his jurisdiction over the case was premised on the plaintiffs’ standing, and would not be compromised by the failure of the government defendants to participate actively on the merits, since he took the precaution of granting intervener-defendant status to parties who were able to present evidence and argument in support of Proposition 8. If the case goes off on the Article III argument, I think the stay gets dissolved and Judge Walker’s Order goes 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 that affirmance by at least a 2-1 vote is likely, but most probably on the narrower ground discussed above, which would have the merit of being less likely to interest the U.S. Supreme Court than would be a broader ruling on the marriage question. What would be stunning, of course, would be a unanimous decision holding Proposition 8 unconstitutional, or more stunning still, a ruling that same-sex couples have the same right to marry as different-sex couples as a matter of constitutional law, but I think such rulings less likely, given some of the concerns Judge Smith expressed from the bench.



Now we wait....



December 07, 2010