Issue:  Vol. 48 / No. 12 / 22 March 2018

Prop 8 appeal creates legal thicket


Market Street was flooded with marchers who celebrated a judge's decision overturning Proposition 8 in San Francisco Wednesday, August 4. Photo: Lydia Gonzales
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The next stage in the fight to secure marriage rights for California's same-sex couples has already begun and is creating a thicket of legal issues that could take years to cut through.

Foremost among the lawyerly wrangling is whether the backers of Proposition 8, the voter-approved ban against same-sex marriage, have standing to bring forth an appeal of Chief U.S. District Court Judge Vaughn Walker's ruling striking down the ballot initiative. In a stinging rebuke to Prop 8's supporters, Walker found that they had failed to "advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

The attorneys for, the group behind the Prop 8 campaign, have already notified the 9th Circuit Court of Appeals they intend to appeal Walker's decision. Yet there is some question as to whether they can indeed carry the fight to the appellate level.

Attorneys for the two same-sex couples who sued the state claiming Prop 8 violated their constitutional rights, as well as for the city and county of San Francisco, have claimed in court papers that the Prop 8 proponents fail to meet the requirements needed to seek appellate review of Walker's decision.

Pointing to what is known as "Article III standing," they note that "where private persons have intervened in a lawsuit to defend a state law, and the trial court has ruled for the plaintiff, intervenors cannot by themselves prolong the litigation through an appeal unless the intervenors independently establish their Article III standing."

In other words, unlike at the trial level where Prop 8's backers were allowed to defend the anti-gay law in court, only the state's governor or attorney general can appeal Walker's decision.

"It is not their role really. They only intervened because the government wasn't willing to defend Prop 8," said Margaret Russell, a professor of constitutional law at Santa Clara University. "If the government doesn't want to appeal, I do think there is a strong argument they don't have standing to appeal."

Russell, however, said since "they have been in the position of defendants so ... I can see the argument to drop them out at the appeal stage pragmatically as not the way to let this case end."

Both Governor Arnold Schwarzenegger and Attorney General Jerry Brown not only declined to defend Prop 8 before Walker during the trial, but they have also asked Walker to lift his stay of his ruling and allow LGBT couples to immediately begin marrying. The judge is expected to issue his decision within weeks.

Aaron McLear, a spokesman for the governor, told the Bay Area Reporter this week that Schwarzenegger "is not going to appeal" since he agreed with Walker's ruling.

"I don't know why he would appeal since he agrees with the decision," said McLear.

Brown's office also confirmed this week that they will not submit an appeal.

"Judge Walker's conclusion that Proposition 8 is unconstitutional confirms the position that the attorney general has consistently taken in the case, and there is therefore nothing for the attorney general to appeal," Brown's press secretary Christine Gasparac wrote in an e-mail reply to the B.A.R.

Once Walker issues his final judgment in the case, then there is a 30-day time limit for any of the losing parties to submit their appeal to the 9th Circuit. Therese Stewart, the chief deputy city attorney who has argued the city's pro-same-sex marriage stance before both state and federal courts, said Prop 8's defenders can't second-guess the governor or attorney general on whether to appeal the ruling.

"Here the proponents of the law were executing a legislative function; they were passing a law. But it doesn't mean they have legal standing to challenge the decisions of the state's top law enforcement officials on how to defend those laws in the court of law," said Stewart. "A party without standing can't create an appeal just because they don't like a decision by the attorney general and governor not to appeal."

In effect, Stewart said the case could conceivably never make it to the U.S. Supreme Court if no party that has standing to appeal does so.

"I think there is a good chance for the Supreme Court not to take it, so if the 9th Circuit said they have no standing, it might end there," she said.

The one wrinkle is that Imperial County has filed a motion to intervene and appeal the case. Located next to the Mexico border, the county's Board of Supervisors voted this week to serve as the appellants in the case.

The county had sought to intervene in the case at the trial level, but Walker denied its request. Russell said it is unlikely that Imperial County or any other state governmental body would have standing to appeal the case. Nonetheless, the question adds to the complexity surrounding the Prop 8 appeal process.

"I think it is a hard argument for Imperial County to win," said Russell. "There are a lot of moving pieces here that the disagreement over Judge Walker's decision has created."

If the 9th Circuit upholds Walker's ruling, as many legal experts suspect it will, then it is a given that the case will land before the U.S. Supreme Court, which has a conservative majority. It takes four votes among the nine justices to hear a case.

"I do think the four conservative justices on the Supreme Court would really want to take up [the case]," said Russell, adding that for Justice Antonin Scalia "it would be the equivalent of throwing his body on the railroad tracks to prevent this from being upheld."

On the flip side, should the 9th Circuit overturn Walker's decision, it is not a guarantee that the Supreme Court's liberal wing would want to hear the case, said Russell.

"If the 9th Circuit overturns some or all of Judge Walker's reasoning and reinstates Prop 8, it is not so clear that the justices who are more liberal would necessarily vote to take that up given the conservative majority of the Supreme Court," she said.

Marc Spindelman, a professor of law at Ohio State University, agreed that it is more likely for the case to land before the Supreme Court if the appeals court rules on behalf of same-sex couples.

"A decision by the 9th Circuit to declare a right to same-sex marriage is more likely to get reviewed by the Supreme Court than a decision that leaves same-sex couples in California only with domestic partnerships," said Spindelman. "The folks people who think of as liberals on the court are not itching for an opportunity ... they have given no evidence they are spoiling for a fight or spoiling for an occasion to declare a right for same-sex marriage."

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