Supreme Court to Hear Challenges to Prop 8 and DOMA Section 3

“It’s just a case of learning how to start”

After having deliberated on many cases involving same-sex couples’ marriage-related rights the week before and deciding nothing, on December 7, 2012, the Supreme Court of the U.S. announced that it was granting review in two cases, one that had held unconstitutional Proposition 8, the initiative that amended California’s state constitution to strip same-sex couples of the right to marry, and one that had invalidated Section 3 of the federal so-called Defense of Marriage Act (DOMA), which requires the federal government to treat legally married same-sex couples as if they were unmarried.  [Quick disclosure:  I am a member of the Board of Directors and an elected General Counsel for the ACLU, which has represented Edie Windsor in her challenge to DOMA Section 3, although I have not helped with that litigation.]  Briefing will occur over the next few months, and the cases will be argued orally probably in late March, with decisions likely when the Court wraps up its term at the end of June 2013.  In light of the questions the Court posed, it looks like the term could end with either a bang or a whimper, as I’ll try to explain.

The clearly bad news, compared to the situation if the Court had not granted review in Hollingsworth v. Perry, as the Prop 8 case is now known, is that same-sex couples will continue to be unable to marry in California until the case is finally resolved.  Had the Court ‘denied cert’ (denied the petition for a writ of certiorari), leaving the decision of the U.S. Court of Appeals for the Ninth Circuit unreviewed, then the trial court’s order enjoining the government defendants not to enforce Prop 8 would have finally been allowed to go into effect.  That relief instead remains on hold (“stayed”) until after the Supreme Court rules in the case.

The Court could in June affirm the judgment below, where Judge Stephen Reinhardt wrote a ruling for the Ninth Circuit that Prop 8 violated same-sex couples’ right to equal protection of the laws under the U.S. Constitution.  The Supreme Court could affirm very narrowly, precisely tracking the Ninth Circuit opinion, its ruling then applying only to those states where same-sex couples were enjoying the right to marry but then had that right eliminated though they retained the possibility of every state-law legal consequence of marriage through a parallel legal institution (in California, “domestic partnerships”).  California is the only such state.   If the Court reasoned slightly more broadly, it could ignore the taking away of the right to marry that was being enjoyed and instead emphasize that California has no functional justification for excluding same-sex couples from civil marriage since it still offers them the same rights through domestic partnership.  This reasoning would apply to any state that denies same-sex couples marriage but offers comprehensive domestic partnerships or civil unions, like Nevada or New Jersey. 

Or the Court could hand the plaintiffs’ attorneys the broad victory they’ve wanted all along and sweepingly rule that the federal Constitution’s unenumerated right to marry is enjoyed by same-sex couples, so that the laws of the 41 states that limit marriage to different-sex couples are unconstitutional.  That kind of broad ruling against Prop 8 and in favor of same-sex couples seems, based on history, less likely than a narrower opinion striking down Prop 8.  But as long as five Justices agree with one or another of the constitutional arguments against the measure, then the plaintiffs will win and the right to marry will be restored in California.

The situation for the California marriage plaintiffs is actually slightly better than that.  Because California’s elected Governor and Attorney General have refused to defend Prop 8 since the outset, the federal trial court let the official Proponents of Prop 8 (the private individuals who qualified it for the ballot) argue in its defense.  But, as I’ve addressed before on CruzLines (here and in its links), federal constitutional law limits the kind of parties and lawsuits that may be brought in federal court:  Anyone seeking to invoke the federal courts’ authority must have “standing” to do so, a kind of legal right to have federal courts rule in a case.

The plaintiffs have argued all along that ballot initiative Proponents such as Prop 8’s official sponsors do not have standing to defend enacted initiatives in federal court.  In granting review in Perry, the Supreme Court directed the parties to address not only the “merits question” of whether Prop 8 violates the Constitution, but also whether the Proponents have constitutional standing in this case.  That is no assurance that the Court thinks they lack standing, but it probably shows that enough Justices had questions that four of them decided to order the parties to brief the issue.  If the Court holds that the Proponents lack standing, then they never should have appealed to the Ninth Circuit, and the Court would vacate Judge Reinhardt’s opinion and send the case back for the Ninth Circuit to dismiss the appeal.  This would leave in place Chief Judge Walker’s trial decision and grant of an injunction, and same-sex couples would be able to marry again in California, but there would be no binding opinion of the Court of Appeals to govern the other western U.S. states in the Ninth Circuit.  (The Ninth Circuit would likely rule on the marriage issue again in an appeal from federal trial courts in Hawaii and Nevada that rejected marriage equality claims.)

So, for the Proponents to win in the Supreme Court, they need five Justices to agree that they both have standing and are correct that Prop 8 does not violate either same-sex couples equal protection rights or their right to marry.  Conversely, for the plaintiffs to win back the right to marry, they just need any five Justices to agree with any version of the argument that Prop 8 is unconstitutional (broad or narrow) or with the argument that the Proponents do not have standing to appeal in this litigation. 

On the other hand, a ruling by the Supreme Court that Proposition 8 is constitutional would necessarily be broad.  To uphold Prop 8’s constitutionality, the Court would have to reject each and every argument that it is unconstitutional.  So, it would have to rule that as a general matter the federal Constitution’s unenumerated right to marry is only a right to marry a person of a different sex.  It would also have to rule that Prop 8 does not violate the Equal Protection Clause in treating same-sex couples differently from different-sex couples.  Because this is an especially implausible argument under any form of heightened judicial scrutiny, this might mean that the Court also might have to rule that only minimal “rational basis” review applies where sexual orientation is at issue (making it harder to challenge anti-lesbigay discrimination of any kind).  And the Court would have to hold that this is true even if a state has no functional justification for the marriage exclusion because it gives same-sex couples the same legal rights and responsibilities via domestic partnerships or civil unions that it gives to heterosexually married couples.  Further, the Court would have to say this is true even where a state used to let same-sex couples marry, and where there was significant evidence of appeals to anti-lesbigay prejudice even in the official ballot materials used to persuade the voters to enshrine such discrimination in the state’s fundamental law.  If the Prop 8 plaintiffs lose, they will lose big (which is one reason the LGBT advocacy groups were not in favor of this litigation when it was first brought).  If that happens, there’d be little prospect for new constitutional marriage equality litigation to succeed (at least until the Supreme Court changes its collective mind, presumably after a change in personnel), and marriage equality advocates would be forced to continue state-by-state fights to persuade the voters to repeal restrictive marriage laws or (in a majority of states) to re-amend their state constitutions to allow same-sex couples to marry.

How all this will ultimately play out will not be clear until the Supreme Court hands down its opinions (though perhaps the oral arguments might offer some clues, however equivocal).

Turning to United States v. Windsor, the DOMA case in which the Supreme Court granted review, it’s interesting to note that the Court there also added a question to the one presented by President Obama’s Solicitor General (“SG,” the nation’s top Supreme Court attorney, number three in the Justice Department).  The SG had asked the Court to decide whether DOMA Section 3 unconstitutionally denies equal protection to same-sex couples legally married under state law.  The Court’s order granting the government’s cert petition added the questions “Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives [the Supreme] Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives [“BLAG”] has Article III standing in this case.”  Because the federal government is continuing to enforce DOMA, even though the President and the Attorney General have concluded that it is unconstitutional, it is still seeking to charge Edie Windsor inheritance tax that she would not have to pay if the federal government recognized her marriage to her late wife.  Their case thus should present a sufficiently adverse case that the Supreme Court would have jurisdiction.

If that’s right, it would not matter in Windsor’s case whether or not the Supreme Court rules that BLAG has standing.  The executive branch, here a proper party, or so I conclude, petitioned for review of the Second Circuit’s decision in Windsor’s favor, so that would distinguish the standing problems from those in the Prop 8 litigation. 

The BLAG is a different matter.  Although the Supreme Court has previously said that Congress is a proper party to defend federal laws at least when the executive branch does not, that has generally been in cases where congressional standing was not necessary to jurisdiction.  Here, you have not a decision by Congress to defend DOMA section 3, but a decision by a bare majority of a committee of just one House of congress.  So there's still a question about BLAG's standing.  If I’m right that this does not matter in the Windsor case, the Court can issue a judgment on DOMA’s merits, and that would affect other cases’ reasoning, but a Supreme Court ruling here that BLAG lacks standing could perhaps have ramifications for some of the many other DOMA cases where BLAG has been defending the law.  (It’s been a long day and I’d have to think that through further.)

If the Court reaches the merits, it could either affirm the Second Circuit’s judgment in Windsor that DOMA Section 3 is unconstitutional or reverse that court.  Most of the courts that have held DOMA unconstitutional have relied on “rational basis review,” the form of judicial scrutiny most deferential to the government.  The Second Circuit Court of Appeals, in contrast, agreed with the plaintiffs and with the Justice Department that courts should be more skeptical when the government discriminates on the basis of sexual orientation; it held that the same kind of heightened scrutiny used in sex discrimination cases also applies to anti-lesbigay discrimination. 

The Supreme Court could affirm on either ground.  It could agree that heightened scrutiny is the proper legal test, and that DOMA Section 3 lacks the “exceedingly persuasive justification” necessary to survive such review.  This would make clear that anti-gay discrimination by the government is dubious regardless of the context, and so it might seem like a broader ruling.  On the other hand, the Supreme Court could follow other courts and its own model (in the 1996 case Romer v. Evans, invalidating a Colorado anti-lesbigay state constitutional amendment), not reach the question of the appropriate level of scrutiny, and just hold that DOMA Section 3 does not even pass the easiest form of judicial review.  Because every government action that discriminates on any basis needs at least such a “rational basis,” a holding that DOMA fails to do so could be helpful in other cases, suggesting a degree of breadth to an otherwise narrow-seeming kind of analysis.

Of course, it’s also possible that the Supreme Court might reverse, upholding the constitutionality of DOMA Section 3.  To do that, a majority would have to decide the proper level of scrutiny for sexual orientation discrimination and then rule that DOMA survives that level.  (Given what he’s said about the Fourteenth Amendment and sex discrimination based on his view of history, Justice Scalia might vote that the proper level of scrutiny here is “none.”)  This again could be bad news for challenges of governmental anti-lesbigay discrimination of all kinds.

So, here’s hoping that the Supreme Court builds its doctrine in a useful direction, even if narrowly, “one brick at a time.”

[edited 20121208 to correct typo]

CA Supreme Court's Disappointing Standing Decision

Well, my heart went "boom"

The California Supreme Court issued the latest entry in the legal paper trail of the saga of Proposition 8 today.  Prop 8, recall, is California’s initiative constitutional amendment that stripped same-sex couples of their previously fundamental right to marry under the California Constitution.  Answering a question that had been certified by the U.S. Court of Appeals for the Ninth Circuit, the court ruled “that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under ... the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”  With this ruling, the dispute over Prop 8's constitutionality returns to the U.S. Court of Appeals for the Ninth Circuit, where that federal court now seems more likely to rule that Prop 8's official sponsors ("the Proponents") have the legal authority or standing to appeal Judge Walker's August 2010 decision holding Prop 8 unconstitutional.

I discussed the procedural posture of the challenge to Prop 8 and issues of the Proponents standing to appeal Walker's decision more fully here and here (among others).  For now, let me repeat that to be able to take an appeal in federal court, the Proponents must have a sufficient stake in the dispute that they have "standing."  Either they must have what the Supreme Court of the United States (SCOTUS) has called a "concrete and particularized interest" in the dispute, or they must somehow be able to step into the shoes of the state of California since pretty much everyone agrees that a state would have standing in federal court to defend its laws.  Prior SCOTUS case law makes it exceeding unlikely that the Proponents would have a particularized interest in Prop 8's validity, and indeed CASC does not even address that part of the Ninth Circuit's question.  Rather, it essentially holds that California law authorizes initiative proponents to step into the state's shoes when the elected state officers who ordinarily defend such measures choose not to.

But from where does this authority stem? CASC repeatedly says that Proponents enjoy this authority "under state law."  And, as quoted in the opening paragraph here, the court says that it is the provisions of the state constitution providing for the initiative power and the provisions of the state's election statutes specifying the role that initiative sponsors such as the Proponents play in getting an initiative adopted that confer this authority on ballot sponsors.  The court does not actually say that it is interpreting any of these provisions as the source of the authority to defend and to appeal adverse judgments -- and with good reason.  As Ted Olson emphasized in oral argument to the court, the California constitution expressly says that "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."  It says nothing about anyone defending enacted initiatives (or any other post-enactment function).  Likewise, the state's Election Code details the role that initiative sponsors have prior to enactment of their measures, and says nothing whatsoever about any post-enactment role for initiative sponsors such as the Proponents of Prop 8.  Ordinary principles of statutory and constitutional interpretation thus would seem to weigh heavily against CASC's conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision.  The court's ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code -- "to guard the people's right to exercise the initiative power."

There is evidence in the CASC's opinion to support this characterization.  The court quoted prior opinions where it had said of the initiative power that it is "the duty of the courts to jealously guard this right of the people."  To that end, the court reaffirmed, "if doubts can reasonably be resolved in favor of the use of [the initiative] power, courts will preserve it."  The trouble, of course, is that, as described above, the reserved initiative power is the power of the people to propose California statutory or constitutional measures and to vote them up or down.  To propose and to vote, as Ted Olson rightly emphasized at oral argument last December.

How then does the court justify creating its own gap-filling rule allowing initiative sponsors the authority to assert the state's interest in an enacted initiative to defend a measure or to appeal a decision invalidating it? The court quotes the same decisions, specifically their language saying that courts should "apply a liberal construction to [the initiative] power wherever it is challenged in order that the right be not improperly annulled."

Set aside the problem that the court is not interpreting but clearly adding to the words of the state constitution and the Election Code.  Where is the risk that an enacted initiative would be "nullified," whether "directly or indirectly" (as the court says elsewhere in the opinion) by acts of elected state officers?  Even if "the [California] Constitution‘s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents' efforts to ‘propose statutes and amendments to the Constitution’ or the People‘s right ‘to adopt or reject’ such propositions" (in the Ninth Circuit's words, quoted by the court), how could elected officers do that nullifying?  No one was claiming that governors and attorney generals could simply disregard an enacted initiative and treat it as a nullity.  As the same-sex couple plaintiffs pointed out and the court conceded, "invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or

Attorney General but from a decision by the federal district court after a contested

trial."  Thus, it is far from necessary to vest initiative proponents with authority to represent the states interest to keep elected officers from nullifying measures the people adopt.

Faced with that inescapable reality, the court retreated from its ostensible concern with preventing initiatives from being nullified, to a concern with keeping them from being "undermined."  At one point, the court suggests that "the California initiative process may be undermined if a California initiative goes undefended in a federal proceeding."  Explaining at greater length, the court argued:

“If public officials refuse to provide [a competent and spirited] defense [of an initiative], the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.”

But this is simply wrong.  The court emphasizes that it is affirming only a limited authority of initiative sponsors to defend initiatives, not to take any affirmative enforcement measures.  So assume that someone has brought suit to challenge the validity of an enacted initiative.  If the plaintiffs litigate in state court, the state courts are free to allow the initiative's sponsors to intervene as defendants, and once they do so, they may present any non-frivolous legal arguments in defense of the initiative they had proposed.  (Alternatively, the state court could let the sponsors participate as amicus curiae or "friends of the court," submit briefs, and engage in oral arguments.)  So, there is no risk of "effective nullification." 

On the other hand, if the plaintiffs litigate in federal court, they have to satisfy federal standing requirements.  If they do not have a sufficiently concrete and particularized injury as a result of the initiative, then the federal court will dismiss their suit, and the initiative will not be nullified.  But if the plaintiffs do have an adequate injury to proceed, then the initiative sponsors would not have to satisfy federal standing requirements to intervene as defendants -- there is already an adequate "case or controversy" (in the terminology of federal standing rules) between the plaintiffs and the state officer defendants who are by assumption refusing to defend the measure.  This is what happened in the Prop 8 litigation.  So, the initiative gets a "competent and spirited defense," and it therefore cannot be pejoratively labeled a state officer "nullification" if a federal judge concludes after an adversarial trial that the measure violates the federal constitution.  Only were state officers to refuse to defend and the federal court also to refuse to allow the sponsors to intervene as defendants would there remotely be a risk of nullification.  But then, either the federal appeals court might well deem it to be an abuse of the trial court's discretion to refuse such intervention -- nullifying the nullification worry -- or state law could much more narrowly vest proponents with authority to step into the state's shoes under those narrow circumstances for purposes of defending the initiative at trial.

So, perhaps the California Supreme Court’s opinion offers some justification for it concluding that it is necessary to use its power to create a rule (of state law) authorizing initiative sponsors to represent the state’s interests under certain rare conditions.  But once anyone has made “a full and robust defense” of an initiative at trial, and thus we can be confident that the trial court will be “aware of and address[] the full range of legal arguments that reasonably may be proffered in the measure’s defense,” a decision holding the measure unconstitutional is no improper nullification, whether or not that judgment gets appealed.  The California Supreme Court’s opinion thus has not justified extending the authority it by near-fiat gave initiative sponsors in today’s decision beyond defending the initiative the sponsors helped enact to appealing from trial court rulings invalidating the initiative.  It is unjustified to suggest that a law that is invalidated after a full adversarial trial has been somehow improperly “nullified” by a state officer’s decision not to appeal the trial court’s judgment.  Indeed, it is an insult to the integrity of federal trial court judges (who along with non-defending governors and attorneys general are the persons about whom the court is worrying).  True, a federal trial court might make a mistake.  But so might a federal appellate court.  And so might the California Supreme Court.  But the prospect of mistake, or even an actual mistake, cannot transform judgment into usurpation.  To the extent the California Supreme Court is worried about “the appearance of the fairness of the” federal judicial process, it is taking on the responsibility of a different level and branch of government: the federal judiciary.

The California Supreme Court’s only halfway real effort to justify its repeated afterthought of “or appeal” whenever it talks about proponents “defending” a measure is relegated to a footnote.  There, the court claims that “Ordinarily, … public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court.… The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.”  This passage is awfully weak.  It shifts away from the court’s main trope about elected officers “nullifying” initiative measures to a much more nebulous claim about “undermin[ing] the initiative power,” and offers no empirical support for its claim about what is ordinarily done nor any normative argument about why the people of the state need someone besides elected officials to have the ability to take appeals from valid federal judgments holding initiatives unconstitutional for that legislative initiative power to be robust.

The court’s reasoning addressing the plaintiffs’ objection to creating new state law giving initiative sponsors the kind of authority at issue here is not much better.  The court argues that “because there is no reason to doubt that the California Legislature … would have authority to step in to assert the state’s interest in the validity of a statute enacted by the Legislature if the state’s executive officials have declined to defend the statute‘s validity in a court proceeding, we conclude that the people are no less entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf when public officials decline to defend the measure.”  But if the legislature were to intervene to defend a law, it would be pursuant to a vote of the legislature or perhaps one of its chambers, either directly authorizing intervention in a particular case, or an earlier vote vesting authority to intervene in legislative leadership, a house, a committee, or some other subset.  Here, even assuming the people (acting in parallel fashion to the legislature, by enacting law via the initiative process) are “entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf,” there is no evidence that the people have chosen to have the state’s interest on their behalf.  As Ted Olson emphasized at oral argument before the California Supreme court, although perhaps not as strongly as he might have, Prop 8 contained no clause granting standing to defend it to its sponsors.  Had there been such language, as there was in Prop 22 (the statutory ban on same-sex couples marrying adopted by the initiative process in 2000), then the same vote that adopted Prop 8 as an amendment to the state constitution also would have expressed the voters’ will to be represented by this particular self-appointed group of California voters.  But there was not.  So it is really the will of the California Supreme Court Justices, and not the will of the people, that appointed Prop 8 sponsors as champions of the people’s interests.

And the identity of these champions matters.  The court recognized that “Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state‘s interest in the validity of a challenged initiative measure.”  But the court’s rejection of this argument completely misses the mark. 

The court somewhat defensively replies that its ruling “does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question.”  But that’s exactly the plaintiffs’ point!  Unlike the attorney general and the governor, the sponsors of a measure are just one or more California voters.  They have not been elected, and therefore cannot be turned out of office by the voters, so this unaccountable collection of California voters cannot claim that basis of democratic legitimacy to represent the interests of the people of the state as a whole, which is what “the State’s interests” are. 

The fact that initiative sponsors “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding,” as the court feebly notes, does not go far enough.  One does not, merely by suing or defending, become obligated to uphold the California and U.S. Constitutions.  Unlike a governor or attorney general, therefore, initiative sponsors therefore can make arguments that are patently antithetical to the foundational law governing in California.  There was a reason that the Governor and the Attorney General of California chose not to appeal Judge Walker’s ruling:  They believed Walker was correct to rule Prop 8 unconstitutional.  When same-sex couples are being denied their basic constitutional rights every day that Prop 8 (or any other initiative that has been held unconstitutional by a trial court) is in effect, fidelity to the Constitution is absolutely a trait that we should want in those empowered to represent the state’s interest.  (The court’s arguments about “public interest” mandate actions and “private attorney general” cases are somewhat more helpful to it, but the fact that they were “initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority” does not enhance their legitimacy.)

Regrettably, all of the shortcoming’s in the court’s analyses are probably somewhat beside the point.  The California Supreme Court as a general matter is the ultimate judicial authority on the content or meaning of California law.  Thus, the innovative and problematic principle it articulated is an authoritative articulation of state law.  The Ninth Circuit and even the U.S. Supreme Court are generally not able to hold that state law means anything different.

That does not mean that the Ninth Circuit would be completely compelled to grant standing just because of what the California Supreme Court said today.  Footnote 7 of the court’s opinion notes that the authority to appeal in California state court litigation follows merely from being a party at trial, but also that the rule is different in federal court, where even a party must satisfy federal standing requirements to be able to take an appeal.  Footnote 27 says that SCOTUS’s “decision in Arizonans for Official English imposes no impediment to a state court‘s determination that, under state law, an initiative proponent has the authority to intervene as of right in an action in state court challenging the validity of an initiative measure.”  Taken together, this provides support for an argument and leaves room for the Ninth Circuit to conclude that, in federal court under federal law, today’s decision by the California Supreme Court does not dictate the conclusion that the Prop 8 Proponents do indeed have standing to appeal Judge Walker’s decision.

However, based on the argument before the Ninth Circuit last December, most observers do not think that Judge Reinhardt wants to hold that the proponents lack standing.  He was clearly frustrated with the possibility that he might not be able to reach the merits of the constitutional challenge to Prop 8 and instead might have to dismiss the appeal on the grounds that the Proponents lack standing to appeal.  If this reading is right, he may be looking for a reason to grant them such standing, and today’s California Supreme court decision may provide him just what he’s looking for.

If that is the case, the panel can be expected to rule on the constitutional questions fairly quickly (likely after allowing the parties to submit briefs on the significance of today’s opinion and perhaps after allowing argument).  Then, each side can be expected to ask SCOTUS to agree to review the case.  (It’s a matter of discretion whether SCOTUS accepts most appeals.)  Since neither the plaintiffs nor the Prop 8 Proponents wanted to have a factual trial in the first case, it is possibly but not highly likely that either side would ask for en banc review by a larger panel of eleven Ninth Circuit judges before asking SCOTUS to get in on the act.  If the Ninth Circuit does rule on the merits, then a narrower, California-specific equal protection holding that Prop 8 was unconstitutional would be less likely to be reversed by SCOTUS than a broader right-to-marry ruling that would invalidate marriage restrictions in 44 states.  Judge Walker’s opinion contained both kinds of rulings.  Only time, though not that much of it, will tell what kind of ruling the Ninth Circuit will make.

California Supreme Court to Rule on Prop 8 Case

Just thinking about/Tomorrow

The California Supreme Court has announced that it will rule in the Prop 8 standingt-to-appeal litigation (see my previous blog post here, which includes links to earlier, more detailed explanatory posts) tomorrow, Thursday, November 17, at 10:00 a.m.  Crossing my fingers the decision will not reflect the confusion some of the Justices displayed at oral argument.  I will blog tomorrow about the court's ruling and its possible significance when the case challenging Prop 8 now returns to the U.S. Court of Appeals for the Ninth Circuit.

Symposium on Marriage for Same-Sex Couples

"Words words words on cracked old pages/How much of truth remains?"

In the run-up to the California Supreme Court arguments September 6 on the litigation challenging Proposition 8 and the cluster of cases challenging the Defense of Marriage Act, SCOTUSblog is now running an online symposium (link here) about marriage for same-sex couples, featuring commentary from numerous academics and a few others.  My contribution, States Rites? Federalism and marriage litigation, is here.

-DBC

Prop 8 Trial Tracker Takes on Prop 8 Proponents' Appellate Brief

"Hey, Pearl, what's bugging you, girl?"

On Prop 8 Trial Tracker, Brian Devine has "attempt[ed] to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8[,] writing about the issues of standing and jurisdiction."  You can read his take here.

I appreciate the value of trying to wade through the Proponents’ filings for the general public.  But I don’t know whether Brian Devine is an expert in the relevant legal areas. (I teach various courses in sexual orientation and the law, constitutional law, and federal courts.)  And the problem here is that significant parts of his analysis are wrong.

For example, he states (and reemphasizes in a comment) that “In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused.”  I believe this is not true.  Rather, the district court “permitted this intervention [of Alan J. Karcher, in his representative capacity as Speaker of the New Jersey General Assembly; Carmen A. Orechio, in his representative capacity as President of the New Jersey Senate; and the New Jersey Senate] because the Legislature had been responsible for the enactment of the statute and because no other party defendant would defend it.”  The defendants made this point in their earlier (and successful) emergency motion to the Ninth Circuit Court of Appeals for a stay of Walker’s judgment.  Since there was no state statute there, nor here, it cannot distinguish Karcher v. May.

Moveover, Brown v. Board of Education was indeed filed as a class action, and whether or not the district court in that case (or the other state cases consolidated with Brown before the Supreme Court), the Supreme Court understood those cases as being class actions. So, since Perry was not even filed as a class action, the propriety of statewide injunction in Brown doesn’t settle the propriety of Walker’s injunction.

Likewise, Loving v. Virginia did not involve a suit for an injunction against the state; Richard and Mildred instead were seeking, and the Supreme Court granted, an overturning of their criminal sentences. Thus, even if the Proponents are right (though I don’t think they are) about the proper scope of Walker’s injunction, that would not conflict with Loving.

All this said, there is plenty of reason for hope still. My blog entry at http://cruz-lines.blogspot.com/2010/08/do-prop-8-proponents-have-standing-to.html gives a pretty lengthy, technical, and careful take on the standing issue.  I’ll also try to blog shortly about the scope of the injunction issue (just the two plaintiff couples, or everyone who may try to marry in California).  Ninth Circuit case law doesn’t clearly dictate that Walker’s injunction was too broad, and I’ll explore relevant Supreme Court precedent.  (In short, I think Vik Amar is wrong.)

But now, I must return to preparing to teach Federal Courts tomorrow morning (Monday, September 20).