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Analysis: Prop. 8 case, less than anticipated?


From the moment nearly 15 months ago that two master legal tacticians, David Boies and Theodore Olson, launched the case of Perry v. Schwarzenegger, it was almost universally expected that it would become a historic Supreme Court test of gay marriage and the Constitution.   Now, perhaps for the first time, it seems realistic to suggest that this particular high-stakes battle may never get  much beyond California, especially in terms of its impact on the Constitution.

That prospect came into view Thursday as U.S. District Judge Vaughn R. Walker suggested that the appeal of his sweeping ruling against California’s Proposition 8 ban on same-sex marriage may end on what everyone but lawyers would consider a mere legal technicality.   It might end, in other words, because no one with a right to do so would opt to take the case beyond Judge Walker’s San Francisco courtroom.

Make no mistake about it: there will be energetic efforts to keep the case going, initially through the Ninth Circuit Court (also based in San Francisco) and, perhaps, through the Supreme Court in Washington.  But the fight, perhaps at every level, could focus on a concept that is anything but familiar to the average American.  The legal label for this concept tells nothing about what it is, although hinting that it finds its origin in the Constitution:  “Article III standing.”   For the supporters of Proposition 8, “Article III standing” is probably not a legal arena where they want to be tested; the current Supreme Court’s majority does not have an expansive view of who can qualify for “standing.”

If the case does falter because of a lack of “standing,” Judge Walker’s 136-page opinion on August 4 against Proposition 8 would stand as a precedent, but one that represented the judgment of a single federal jurist, without the enlarging endorsement of a federal appeals court or of the Supreme Court.  District Court rulings, even those that are widely admired within the legal community, do not have the compelling force behind them that a higher court’s decisions do.

In practical terms, what that would mean was that gay marriage would be legal in California, the nation’s largest state.  And this would add a sixth state that permits same-sex couples to enter legal marriage.    Such nuptials , however,would still be illegal in more than three dozen states, since the Supreme Court would have had no chance to turn Judge Walker’s ruling into a nationwide, binding precedent.

Coincidentally, there is some talk now in conservative circles that maybe the fight should be abandoned in California, leaving the Walker opinion as an isolated declaration, contained in a way that would not threaten any of the gay marriage bans outside California.  The theory is that the present Supreme Court could not be relied upon to strike down Judge Walker’s conclusions and uphold Proposition 8.  That is separate, though, from the question of whether the Proposition 8 case will shrink because it turned out that no appeal was legally permissible.

Why wouldn’t an appeal be allowed?  The answer starts with the Constitution.  Because federal courts were created to exist within limits on their authority, the Constitution requires that, before any federal court can decide a case in a final way, there must be a live “case or controversy.”  As long ago as George Washington’s time, the federal courts have refused to issue advisory opinions — that is, a legal declaration that does not really solve an actual courthouse battle between two real-life opposing sides.

For there to be a case or controversy, in a constitutional sense, there have to be two sides, whose interests are opposed in some crucial way, and each side must be at risk of being harmed in a significant way if it were to lose.

Those requirements are part of the Constitution’s Article III, which created the federal court system, including the Supreme Court.  As long understood, Article III requires, for there to be a live case, someone who can make a plausible claim that they have suffered a legal injury or wrong, they must make a plausible case as to what caused that injury, and they have to offer evidence that the harm would be remedied if they won their case.  (In technical legal terms, these are the requirements of injury, causation, and redressability.)

On none of those three points, though, must the person or entity who sued prove it in a final way at the beginning of the lawsuit.  In other words, they don’t have to win the case convincingly in order even to start it.  That will be the test they will have to meet only if the case goes forward, reaching the merits.  But what must be offered at the outset is enough evidence to convince a court that the case is a live one, within the court’s powers.

In Perry v. Schwarzenegger, the Boies-Olson team put together a lawsuit involving two California same-sex couples, who claimed that their commitment to each other was legally frustrated because the voter-approved Proposition 8 barred them from getting married, to give official recognition to their union.   That was their claim to “standing” to challenge the constitutionality of Proposition 8, and Judge Walker accepted it.   They still had to prove, of course, that, at the end of the trial, the ballot measure did violate a right that the Constitution protected from state interference.

Now that they have won, in Judge Walker’s court, the two couples have no reason to seek an appeal.  But, if someone is dissatisfied with what the judge decided, and there  are plenty of people and organizations that are, the question arises whether any of them have “standing” to appeal.  To keep the case alive on appeal, someone has to have “standing” in the Article III sense, just as such standing was required for a lawsuit in the first place.

The state of California, its governor, its attorney general, and other officials involved in the enforcement of state laws about marriage would definitely have “standing” to challenge Judge Walker’s decision in an appeal to the Ninth Circuit Court.  But the officials from Gov. Arnold Schwarzenegger down to the marriage licensing officers have indicated that they have no interest in appealing the case.  The governor filed legal papers saying it was time to end the discrimination against same-sex couples.

But there are many Californians, including those who put together the campaign to convince voters to pass Proposition 8’s ban on gay marriage, and lawyers for some of these individuals and groups have already filed appeals to the Ninth Circuit.  On Thursday evening, hours after the judge’s latest ruling against them, the proponents began another maneuver in the Circuit Court: a plea for a formal postponement (a “stay”) of the Walker opinion while they pursue their appeal on the merits of Proposition 8’s constitutionality.

In the wake of the filing seeking a stay from the Ninth Circuit, it is clear that the Article III issue will be hotly disputed as the case moves along.   In their lengthy motion for a stay, the backers of Proposition 8 strongly disagreed with Judge Walker’s implication that they have no right to appeal.  They devoted five pages to recounting their interpretation of California law as giving them, as sponsors of the ballot measure, a clear right to be in court to defend it.  If there is doubt about it, the motion argued, they could rely on the standing of the marriage license official in Imperial County, Calif., who is separately appealing in an effort to become officially an intervenor in the case.

The judge’s discussion of the standing issue came as he refused to postpone his own ruling for any longer than a brief period to allow the Circuit Court to hear an application for a stay.

It is standard procedure in the federal courts that, in order to get a court to stay a ruling — that is, to put it on hold — an individual or organization involved in a case must meet four requirements: (1) show a reasonable likelihood that, if the case does go to a final ruling on the merits, they will win; (2) show they will suffer “Irreparable injury” if the postponement is not granted, (3) show that the stay will not cause substantial harm to others, and (4) show that a postponement is “in the public interest.”

While Judge Walker found that the backers of Proposition 8 could not satisfy any one of those four, it was in the course of his discussion of those points that he hinted broadly that the proponents may not have Article III standing, and thus no right to appeal his decision and get the Ninth Circuit to rule on the merits.

In both the Ninth Circuit and, if the case goes further, in the Supreme Court, it is now apparent that the resolution of the issue of standing to appeal will turn on how those courts interpret the Supreme Court’s 1997 decision in Arizona for Official English v. Arizona, casting doubt on whether initiative sponsors may appeal to defend a ballot measure when state officials refuse to do so, and the Court’s 1985 ruling in Karcher v. May, suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that.   The proponents of the ban on gay marriage, in direct conflict with Judge Walker’s interpretation of California law, argue that state law does give them the right to be in court.   California law, they said, makes their case different from the Arizona English initiative case.