NCLR Legal Analysis of the Ninth Circuit Prop 8 Ruling

January 4, 2011

By Shannon Minter, Esq.
National Center for Lesbian Rights Legal Director

Today brings a new development in Perry v. Schwarzenegger, the federal constitutional challenge to California’s Proposition 8, which amended the California Constitution to strip same-sex couples of the freedom to marry.  Perry is currently on appeal before the Ninth Circuit Court of Appeals, the federal appeals court that covers California. In a ruling issued this morning, the Ninth Circuit denied Imperial County’s attempt to intervene in the case. The Ninth Circuit also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the ballot has a legal right to appeal District Court Judge Vaughn Walker’s decision that Prop 8 is unconstitutional.

To understand what today’s ruling means, it is helpful to look back on the history of the Perry case. In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California. Judge Walker permitted Prop 8’s official supporters to intervene in the case as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent its unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant.

After a three-week trial in January 2010, Judge Walker ruled in August 2010 that Prop 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. Judge Walker also ruled that Imperial County did not have the right to intervene as a defendant.

California’s Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed appeals with the Ninth Circuit.

At oral argument on December 6, 2010, the Ninth Circuit panel asked all sides questions about whether the official supporters of Prop 8 have the legal right to appeal Judge Walker’s decision. The parties also addressed whether Imperial County should have been allowed to intervene in the case as a defendant.

Today, the Ninth Circuit panel upheld Judge Walker’s decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In order to intervene, Imperial County would have needed to show that it had a significant interest at stake. The Ninth Circuit explained in today’s opinion that Imperial County did not have any interests that would be sufficiently affected by the outcome of this lawsuit.

In addition, the Ninth Circuit made clear in today’s ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker’s decision that Prop 8 is unconstitutional, the appeal is over. In order to answer that question, the Ninth Circuit has asked the California Supreme Court to clarify whether California law gives Prop 8’s supporters the right to pursue an appeal when the state’s official representatives, after carefully evaluating the interests of the entire state, have made a considered decision not to appeal.

Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law – that is, whether they have “standing” to appeal.  The California Supreme Court may hold that California law does not give initiative sponsors the right to override the litigation decisions of the state’s official representatives.  If so, then the Ninth Circuit likely will hold that the Prop 8 supporters do not have standing.  That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.  

Alternatively, if the California Supreme Court were to hold that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8’s supporters meet all of the other criteria to have standing under federal law.  If it ultimately holds that the Prop 8 supporters have standing, then the Ninth Circuit could reach the merits of Judge Walker’s ruling that Prop 8 is unconstitutional.      

The next step after today’s ruling is for the California Supreme Court to decide whether it will accept the Ninth Circuit’s request. If it does so, it will then get briefs from both sides, and might hear oral argument as well before ruling. There is no set timeline for the California Supreme Court to rule.  In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to it by the Ninth Circuit. Given the importance of this case and the real harm that inequality causes to LGBT people every day, however, we are hopeful that the Court will act quickly to restore fairness and equality for same-sex couples in California.


Equal Right to Marry, and Divorce

September 2, 2010

by Jarrett Barrios | Boston Globe

It was the embarrassingly rich carbohydrates shown in the preview — the scene of Julia Roberts dining on delectable pasta in Italy — that seduced me into seeing “Eat, Pray, Love.’’ Surely, I thought, this will be the escape I need after a long week, the latest in what has been an emotional year.

read more


On Prop 8, It’s the Evidence, Stupid

August 19, 2010

by Lisa Bloom | CNN.com

There’s a big difference between a political debate about same-sex marriage and the recent hard-fought court challenge to the California ban, Proposition 8.

read more


Statement from NCLR Executive Director Kate Kendell on Today’s Ninth Circuit Ruling in Prop 8 Case

August 16, 2010

(San Francisco, CA, August 16, 2010) — Today, the Ninth Circuit Court of Appeals granted the Proposition 8 proponents’ motion to stay U.S. District Court Judge Vaughn Walker’s decision, which means that same-sex couples in California will not be able to marry while the case is on appeal. However, the Ninth Circuit put the appeal on a fast track and specifically directed that the Prop 8 proponents to address “why the appeal should not be dismissed for lack of Article III standing” in their opening brief.

 ________________________________________

Statement from NCLR Executive Director Kate Kendell

 “Every additional day that couples must wait to marry again in California is painful, but despite the terrible disappointment for the many couples whose right to marry has been delayed yet again, today’s ruling includes another significant victory for our side. The court did the right thing by putting the case on a fast track and specifically ordering that Prop 8 proponents show why they have a legal right to appeal. This ruling brings us one step closer to ending the nightmare of Prop 8, and restoring full equality for all Californians.”


What Today’s Ruling in the Ninth Circuit Means for Same-Sex Couples Who Want to Get Married

August 16, 2010

(San Francisco, CA, August 16, 2010) — Today, the Ninth Circuit Court of Appeals granted the Proposition 8 proponents’ motion to stay U.S. District Court Judge Vaughn Walker’s decision, which means that same-sex couples in California will not be able to marry while the case is on appeal. However, the Ninth Circuit put the appeal on a fast track and specifically directed that the Prop 8 proponents to address “why the appeal should not be dismissed for lack of Article III standing” in their opening brief. That means that the Court will consider whether the decision can be appealed at the same time that it is considering whether Judge Walker’s decision that Prop 8 violates the federal constitutional is legally correct.

All the briefing must be completed by November 1, 2010 and the oral argument will take place the week of December 6, 2010.

Proponents’ opening brief is due September 17. The plaintiffs’ opposing brief is due October 18. The proponents’ reply brief is due November 1.

The Ninth Circuit is not required to issue its decision within any particular time frame after oral argument; however, when an appeal is expedited, the Court tends to issue decisions more quickly. That said, it is still likely to take at least a few weeks or months after the oral argument in December for the Court to issue a decision.

Once the Ninth Circuit rules, the losing side can ask the United States Supreme Court to hear the case. The Supreme Court then has discretion to take the case or to let the Ninth Circuit’s decision stand.


Ted and David’s Most Excellent Adventure

August 16, 2010

In the weeks leading up to the Proposition 8 trial, much was made in the media, blogs, and everyday conversations about the unlikely duo leading the legal challenge against the shameful California ballot measure that stripped marriage from same-sex couples.

The two, Ted Olson and David Boies, are an unlikely pairing on many levels. They are political adversaries, and famously opposed each other in Bush v. Gore. They are each high-powered and highly paid inside-the-beltway lawyers. Ted is a long-time darling of the conservative movement, a former U.S. Solicitor General and a founder of the Federalist Society. David is a Democratic Party insider and an advisor to a number of key Democratic leaders. And, finally, both are straight, and had no apparent prior interest or experience in lesbian, gay, bisexual, and transgender issues.

When the lawsuit was filed, the first question to each of them was, “Why?” Their eloquent statements in support of full equality for same-sex couples quickly convinced even the most dubious that their commitment was sincere. Their stunning trial presentation and utter evisceration of the arguments and witnesses of those supporting Prop 8 paved the way for the recent ruling by Judge Vaughn Walker, which methodically dismantled every tired and baseless trope ever trotted out for why same-sex couples alone should be excluded from the right to marry. The trial was a masterwork, the ruling a tour de force. As a result, the LGBT civil rights movement has jumped into hyper-drive.

This is a moment that happens in almost every major social justice movement. The community most affected, along with its closest allies, toils for years to secure key wins—measured in terms of formal equality, changing attitudes, and cultural shifts. In the past five decades the modern LGBT civil rights movement has made breathtaking advances in both law and popular culture. We have made these gains because we fought for them, and we have been joined by key allies: family members, neighbors, religious leaders, politicians, Hollywood, and business types.

All together, we have come very far. But every movement also needs a game changer – the key figure, or figures, who come, seemingly from nowhere, and step up to make our fight their fight. When that moment happens, it is something to behold. In the wake of the Prop 8 ruling, we heard the familiar hysterics from the same over-the-top folks who always show up to foam about the end of civilization. But for the first time in the wake of a major legal victory for LGBT rights, we are neither hearing nor seeing any of that from those in real political leadership positions, who have mainstream credibility. In fact, it seems eerily quiet—the noises we have heard from those quarters in the past are now muted and few. So it may be that Ted and David not only led the legal team that took down Prop 8, but may, just by being who they are, have muzzled some of the most powerful voices against us.

It remains to be seen how long this apparent detente will last. But for the moment, it seems cooler heads are prevailing. And just this week CNN released poll results showing, for the first time ever, majority support for the right of same-sex couples to marry. So maybe, just maybe, some of those who have been so quick to vilify us are being forced to think twice, simply because a man they respect, a colleague they admire, a long-time friend they look to for advice, has said, “That’s enough.” We aren’t the first and won’t be the last civil rights movement to benefit enormously from the involvement of unlikely allies, but as we savor the victory of truth over lies and reason over caricature, it is very nice to have Ted and David by our side.


Green Light and Delay on Same-Sex Marriage

August 13, 2010

by Jesse McKinley | New York Times

Same-sex marriage is legal again in California. Sort of.

read more


Latin America Ahead of U.S. on Same-Sex Marriage

August 13, 2010

Los Angeles Times editorial

As California and the United States struggle with the issue of same-sex marriage at the polls and in courtrooms, Latin America is moving more broadly toward acceptance of this basic human right. Last month, Argentina became the first nation in the region to legalize such marriages, granting wedded gay and lesbian couples the same legal rights, responsibilities and protections as heterosexuals.

read more


Judge Walker’s Ruling Extending Stay Until August 18— What Does It Mean and What Happens Next?

August 12, 2010

Does Judge Walker’s ruling mean that same-sex couples in California will be able to marry starting August 18, 2010?

Not necessarily. Judge Walker ruled that there is no legal reason to delay letting same-sex couples marry; however, he kept the stay on his ruling in place until August 18. That extra time will allow the Ninth Circuit Court of Appeals to decide whether to let same-sex couples in California marry while the appeal proceeds, or whether to continue the stay until the Ninth Circuit reviews Judge Walker’s decision that Prop 8 is unconstitutional.

In practice, this means that the proponents of Prop 8 have a chance to file a motion for stay with the Ninth Circuit, and the Ninth Circuit has a chance to grant or deny that motion, but it must do so by August 18. If it does not, marriages will automatically start again at that time. The proponents of Prop 8 filed an emergency motion for stay pending appeal on August 12, 2010, shortly after Judge Walker issued his new ruling.

Does the Ninth Circuit have the final say over whether to stay Judge Walker’s ruling?

No. If the Ninth Circuit denies a stay, the proponents of Prop 8 can ask the United States Supreme Court to issue a stay. That request would be directed to Justice Anthony Kennedy, because he is the justice designated to hear requests for stays in the Ninth Circuit. If Justice Kennedy denied the motion to stay, the proponents of Prop 8 could ask the entire court to rule on that issue. Remember, this is not about whether Prop 8 is unconstitutional, but only about whether couples can marry based on Judge Walker’s ruling while the case is being appealed.

If same-sex couples in California can begin to marry again starting on August 18, will those marriages be valid if Judge Walker’s ruling is later overturned on appeal?

We strongly believe that marriages based on Judge Walker’s decision should be valid, even if the decision is later overturned on appeal (which we do not expect, given the strength of Judge Walker’s opinion). In his stay order, Judge Walker also supported that position, stating, “The court has the authority to enjoin defendants from enforcing Proposition 8. It appears, then, that marriages performed pursuant to a valid injunction would be lawful, much like the 18,000 marriages performed before the passage of Proposition 8 in November 2008. See Strauss v Horton, 46 Cal 4th 364, 472 (2009) (holding that married couples’ rights vest upon a lawful marriage).”

That said, to be safe, we strongly encourage same-sex couples in California who marry based on Judge Walker’s decision to also register as domestic partners to ensure that you are protected in the event your marriage is ever challenged. California law permits a couple both to marry and register as domestic partners, so long as it is with the same person. Also, you do not have to be a California resident to marry in California or to register as domestic partners.

What if the Ninth Circuit stays Judge Walker’s decision?

If the Ninth Circuit stays the decision, then same-sex couples in California will not be able to marry until the case is resolved on appeal.

Why is Judge Walker’s August 12 ruling important?

Even though Judge Walker did not immediately let same-sex couples in California marry, the ruling provides important insight into the merits of the issues that the Ninth Circuit will consider on appeal. For example, in his stay order, Judge Walker casts serious doubt on whether the proponents of Prop 8 even have “standing” to pursue an appeal because they do not speak for the state of California, and the official representatives of the state agree that Prop 8 is unconstitutional. Standing refers to whether a particular person has a legal right to bring an appeal.

In his stay order, Judge Walker said: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal.”

What would happen if the proponents of Prop 8 do not have standing to appeal?

That would mean that Judge Walker’s decision would go into effect and could not be appealed. Same-sex couples in California would once again be able to marry, and Prop 8 would be permanently struck down.

Who gets to decide whether the proponents of Prop 8 have standing to appeal?

The Ninth Circuit will have the first chance to rule on that issue. No matter which way the Ninth Circuit rules, either side could appeal that decision to the United States Supreme Court. The Supreme Court can then choose whether to rule on the issue or let the Ninth Circuit’s decision stand.

Would it be unusual for a federal court opinion striking down a state law not to be appealed?

Not particularly.  For example, in 1997, a federal district court struck down most of Proposition 187, a California ballot initiative that tried to exclude undocumented immigrants from many basic rights.  The State of California ultimately decided not to appeal the court’s ruling.


Official Prop. 8 Plaintiffs’ Statement on Today’s Stay Ruling

August 12, 2010

from the American Foundation for Equal Rights

The Chief Judge of the United States District Court for the Northern District of California, who last week rendered a sweeping decision striking down California’s Proposition 8 as an unconstitutional violation of the rights of gay and lesbian citizens to due process and equal protection of the law under the Fourteenth Amendment, today denied the proponents’ motion to stay that decision pending a full resolution of the merits on appeal, instead granting only a short stay until August 18, 2010 “solely in order to permit the court of appeals to consider the issue in an orderly manner.”  This means that unless the Court’s decision is stayed by a higher court, Californians who were denied equality by Proposition 8 will soon, and once again, enjoy their fundamental right to marry.  Today’s order can be found here:  http://www.equalrightsfoundation.org/legal-filings/ruling-on-motion-for-stay-pending-appeal/

“The overwhelming evidence at trial established beyond any doubt that Proposition 8 denies gay men and lesbians the fundamental right to marry and treats them unequally, without any rational basis for doing so, and that it causes them irreparable and immediate harm,” said Theodore B. Olson, who together with David Boies led the legal team in this lawsuit.  “The Court’s decision today recognizes that there is no reason to delay allowing gay men and lesbians to enjoy the same rights that virtually all other citizens already enjoy.”
“The unconstitutionality of Proposition 8 is comprehensively and unequivocally demonstrated by the Court’s 136-page ruling, and so we are confident that we will continue to prevail,” said Chad Griffin, the Board President of the American Foundation for Equal Rights. “Our nation was founded on the principle that every American is equal in the eyes of the law. This case is about affirming that principle.”

The American Foundation for Equal Rights and plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo challenged Proposition 8 in federal court for violating the U.S. Constitution. After a three-week trial (including the testimony of 17 plaintiffs’ witnesses, among them the foremost experts on the relevant issues, and thousands of pages of documents and a wealth of other evidence) the Court ruled last Wednesday, August 4, that Proposition 8 violated the rights to equal protection under the law and due process that the U.S. Constitution guarantees to every American.


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