If a federal appeals court or the U.S. Supreme Court prefers a different moment in history to take on the scalding-hot controversy over same-sex marriage, the legal challenge to Proposition 8 is unfolding in a way that provides a tailor-made escape hatch.
The 9th U.S. Circuit Court of Appeals this week put the legal fight over Prop. 8 on hold while it considers the appeal of a San Francisco federal judge’s ruling striking down California’s ban on same-sex marriage. But in its brief order, the appeals court revealed that it will also examine an arcane procedural aspect of the case — an issue that could lead to the resumption of same-sex marriages in California without a broader ruling on whether gay and lesbian couples have a constitutional right to wed.
Before it can decide whether Prop. 8 is unconstitutional, the 9th Circuit must decide whether it has a valid appeal on its plate.
The backers of the voter-approved ballot measure have been left to defend the same-sex marriage ban alone, and there appears to be serious doubt whether they have the legal right to press the appeal on behalf of the state when California’s two top officials, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, have refused to do so.
In legal parlance, the issue is known as “standing.” And if the 9th Circuit or later the Supreme Court concludes that Prop. 8 supporters do not have legal standing to represent the state, Chief U.S. District Judge Vaughn Walker’s Aug. 4 ruling would be left intact and California would be barred from enforcing its ban on same-sex marriage. It would join five states in allowing gay nuptials. And the heart of the Prop. 8 legal fight, whether a state ban on same-sex marriage violates the federal constitution, would be left for another day.
“Judges are human beings,” said Alan Morrison, a George Washington University law professor. “If there is an easy way out, most people will look for it. And this would be an easy way out for the judges.”
As obscure as it sounds, legal standing has played a large part in many blockbuster cases through the years. The Supreme Court used standing to avoid the thrust of a 2002 9th Circuit ruling that struck down the Pledge of Allegiance in public schools, finding that the atheist who challenged the ritual never had a right to sue. In what is considered a crucial precedent for the Prop. 8 case, the Supreme Court in 1997 refused to consider the merits of Arizona’s voter-approved English-only law, finding it “dubious” for that ballot measure’s sponsors to be allowed to defend it alone on appeal.
To establish standing, a party in a lawsuit must show they have a direct stake in the outcome, such as the same-sex couples who sued for the right to marry or the governor, who was a named defendant and represents the state’s residents.
The Prop. 8 team’s right to claim standing and appeal Walker’s ruling is fraught with complexities. For one thing, Walker allowed the campaign team to defend the law in January’s trial, although the standing issue was never addressed. With Brown and Schwarzenegger in the case as defendants but mute, the judge simply allowed foes of same-sex marriage to present a defense of the law, which is not the equivalent of legal standing to appeal.
Now, there is no state defendant willing to appeal. And that is unlikely to change even if Republican candidates Meg Whitman and Steve Cooley win in November and take over as governor and attorney general. The deadline for appealing Walker’s order is early September, which will be long past by the election, and legal experts say there are obstacles to jumping into the case after that.
Prop. 8 lawyers insist the unique circumstances of the case give them that right to appeal. As one Prop. 8 defense lawyer, Douglas Napier, puts it, “The people of California shouldn’t lose by a forfeit because the governor refused to do his job.”
Further muddying the issue is Imperial County, where nearly 70 percent of voters embraced Prop. 8 in November 2008. Walker refused to allow Imperial County to intervene in the trial to aid in the defense, but now the county has argued that it has standing as a government entity to appeal.
“I’ve heard attorneys for the other side say that they want this case to go to the United States Supreme Court,” said Jennifer Monk, a lawyer for Advocates for Faith and Freedom, a Christian group representing Imperial County. “It would be ironic if their arguments lead to a result that this (decision) cannot be appealed.”
Walker last week escalated the standing issue, which had been buzzing along quietly on legal blogs for some time. In an order that would have allowed same-sex marriages to take place right away, Walker wrote that Prop. 8 backers likely do not have a legal right to appeal. Lawyers for same-sex couples pounced on the argument.
But Theodore Boutrous Jr. refuted the notion that gay rights lawyers would prefer the 9th Circuit or Supreme Court duck the main issue, calling the standing argument “another weapon in our arsenal.”
“Our top priority is and always has been to achieve a ruling from the Supreme Court, from the 9th Circuit, that strikes down Proposition 8,” he said.
The legal cognoscenti is generally split on whether the standing issue will be decisive in the 9th Circuit, which is scheduled to hear arguments in the Prop. 8 case in December.
John Eastman, dean of Chapman University law school and a Prop. 8 supporter, is convinced the precedent “is fairly strong” that the ballot measure’s lawyers should be able to appeal. And he downplayed the suggestion the higher courts might prefer to resolve the case without addressing the central issues.
“The whole thing is going to be a mess,” he said of letting Walker’s ruling stand without deciding the same-sex marriage question. “You don’t want that dragging on for years. You want it resolved.”
Erwin Chemerinsky, dean of the UC Irvine law school, said it is doubtful Prop. 8 lawyers have a right to appeal, citing the Supreme Court’s unanimous decision in the Arizona case as the most powerful precedent. Morrison agrees.
“There is a very substantial chance this court will say there is no standing,” he said. “The better side of the argument is that there is no standing.”
Contact Howard Mintz at 408-286-0236
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