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Back to Section One | Back to Arts & Entertainment
posted Friday, January 7, 2011 - Volume 39 Issue 01
Ninth Circuit issues orders in Prop 8 case
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Ninth Circuit issues orders in Prop 8 case

by Mike Andrew - SGN Staff Writer

The Ninth Circuit Court of Appeals panel hearing California's Prop 8 case issued two orders on January 4 addressing the controversial issue of standing.

'Standing' means who can legally appeal federal District Judge Vaughn Walker's ruling that Prop 8 violates the 14th Amendment to the U.S. constitution.

Prop 8 passed in November 2008, reversing a California Supreme Court decision that legalized same-sex marriage. Walker struck down the measure in August 2010 - saying that the 14th Amendment required equal treatment of same-sex and opposite sex couples - but stayed the ruling pending appeal.

Then-Governor Arnold Schwarzenegger and State Attorney General Jerry Brown both agreed that Prop 8 is unconstitutional and declined to appeal. Brown is now governor and the state's new attorney general, Kamala Harris, also says she will not appeal.

The supporters of Prop 8 did file an appeal, however, as did California's Imperial County.

Ted Olson and David Boies, the attorneys who sued to get Prop 8 overturned, argued that only California's governor and attorney general had standing to appeal, since only they were legal representatives of the citizens of California, and only they were charged with enforcing Prop 8's ban on same-sex marriages.

If the Ninth Circuit decides they are right, then Walker's ruling will stand and same-sex marriage will once again be legal in California.

On the other hand, if the Ninth Circuit decides that parties other than state officials do have standing to appeal, they must then go on to decide the underlying constitutional question: Does the 14th Amendment mandate equal marriage rights for same-sex couples?

In their January 4 ruling, the three Ninth Circuit Court judges who are hearing the case provided a partial answer.

In one document, they dismissed Imperial County's appeal for lack of standing.

"We affirm the denial of the intervention motion [by Judge Walker] & and correspondingly we dismiss the [Imperial County] appeal on the merits for lack of standing," the Ninth Circuit panel said.

This result was widely expected because of the weak presentation Imperial County officials made to the court.

In another order also issued on January 4, the panel of judges referred to California's Supreme Court the crucial issue of whether Prop 8's original backers have standing to appeal.

Saying that issue turned on a question of state law, the federal judges specifically asked California's high court to determine whether "the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."

The federal judges also acknowledged that the California Supreme Court might have a totally different take on the legal issues involved.

"We understand that the [California Supreme] Court may reformulate our question, and we agree to accept and follow the Court's decision," they wrote in their ruling.

According to the Ninth Circuit Court judges, this issue - an issue of state rather then federal law - would ultimately determine whether Prop 8 backers will be allowed to argue their case in the federal courts.

"If California does grant the official proponents of an initiative the authority to represent the State's interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State," the federal panel said.

If the California Supreme Court does find that Prop 8 backers may appeal, then the Ninth Circuit will decide their appeal on its merits. If it determines that Prop 8 backers lack standing, then the federal court will dismiss the appeal on procedural grounds as they did with Imperial County's appeal.

Judge Walker believed that Prop 8's proponents do not have standing to appeal. At least one of the Ninth Circuit panel - Judge Reinhardt - argued in court that the backers have "a strong argument to the contrary."

Ultimately California's Supreme Court must decide what state law says.

According to Lambda Legal, California law is ambiguous on this point.

"State law is unclear on those important points," Lambda Legal said in a statement issued in the wake of the Ninth Circuit's rulings, "and that's problematic for our entire state. In California, so much lawmaking is done these days by popular vote at the ballot box. The public needs to know what processes exist for testing measures enacted by voters at the ballot box."

Lambda Legal's statement also noted that "state law up to this point has never authorized political activists to usurp the role of the state's chief executive and top lawyer."

The California Supreme Court is not obligated to respond to the Ninth Circuit Court's request for a ruling, and even if they wish to rule on this issue, they are not required to meet any timeline.

The Ninth Circuit's rulings may mean that a final decision in the Prop 8 will be delayed many months.

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