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Same-sex marriage: Close, but not yet in Calif.

UPDATE:  Within a few hours after the judge refused their plea to postpone his ruling for more than a few days, the sponsors of Proposition 8 filed an emergency motion for a stay with the Ninth Circuit.  In a filing that in text runs to 75 pages, the proponents argued that the judge’s decision against the ban “will almost certainly be reversed.”


The federal judge who struck down California’s ban on same-sex marriages last week refused on Thursday to postpone his decision, but did rule that it would not take effect until the Ninth Circuit Court has a chance to “consider the issue in an orderly manner.”  The order can be found here.  U.S. District Judge Vaughn R. Walker specified, however, that his ruling would take effect in six days.

The judge raised the possibility that the backers of Proposition 8 — the ban approved by the state’s voters in 2008 — may not have a legal right to appeal his decision, since state officials have declined to defend the ban and seem unlikely to pursue their own appeal.  The judge declared: “If the state [officials] choose not to appeal, proponents may have difficulty demonstrating Article III standing” — that is, the legal right under the Constituton to be in court.

Backers of the ban are expected to move quickly to ask the Ninth Circuit to delay Waller’s decision while they pursue an already-filed appeal (Circuit docket 10-16696).   If the Circuit Court refuses to  do so, the proponents are likely to then make an attempt to persuade the Supreme Court to stay the ruling.  Such a request for a postponement would go first to Justice Anthony M. Kennedy, the Circuit Justice for that part of the country.

Judge Walker’s comments about the possible lack of an appeal right for Proposition 8’s supporters posed an issue that the Circuit Court presumably will have to confront before it proceeds with any review of the historic decision to allow same-sex couples in the nation’s largest state to get married. The judge noted pointedly that, in allowing the ballot measure’s supporters to join in the trial of the ban’s constitutionality, he had never formally ruled that they had “standing.”

He recalled that he had concluded that the supporters had “a protectible interest…in defending Proposition 8,” but he said that that alone would not be enough to give them standing, and would not provide a basis for a right to appeal — especially if state officials decline to press the case in the Circuit Court.  All key state officials had told Judge Walker last week that they opposed any delay of his ruling, and said they were prepared to move ahead with issuing marriage licenses to gay couples.  Gov. Arnold Schwarzenegger and other officials said last week that the state had a strong interest in “eradicating unlawful discrimination and its detrimental consequences” for gay persons.

Under California law, the judge said, supporters of ballot measures do not have the authority or duty to enforce a provision like Proposition 8.  The state Supreme Court has  ruled, he added, that local officials do not have any authority to deal with the legal issue of marriage, since that is a state responsibility.  “Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages,” Walker wrote.

The judge said he had offered Proposition 8’s backers a chance to spell out a harm that they would directly suffer if their measure were struck down, and the only reply was that they were interested in defending the measure.  They failed, he said, “to articulate even one specific harm they may suffer as a consequence” of an order barring enforcement of the marriage ban.

The judge relied quite heavily upon a 1997 decision by the Supreme Court — Arizonans for Official English v. Arizona. That decision involved a 1988 ballot initiative in Arizona, declaring that English was to be the state’s official language.   In that decision (written for a a unanimous Court by Justice Ruth Bader Ginsburg), Judge Walker noted, the Justices expressed “grave doubts” whether those who propose a ballot measure have standing separate from state officials to defend the measure’s constitutionality.  (NOTE: While the Court expressed those doubts, it ultimately did not resolve whether ballot measure proponents may appeal to defend a measure when the state does not; the case was dismissed as moot, leaving that issue and others unsettled.)

The judge summed up on this point:  “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 courts of appeals will be able to reach the merits of proponents’ appeal.  In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction.”

Even so, he said, the doubt about standing to appeal “weighs heavily against the likelihood of their success.”

Under the normal court approach to “standing” under the Constitution’s Article III, which controls the powers of federal courts, including the Supreme Court, those who want a decision of a court put on hold must convince a court of four things:  whether they are likely to win the appeal on its merits, whether they will be harmed without a postponement, whether other parties would be harmed by a postponement, and whether a delay is “in the public interest.”

Judge Walker found that the backers of Proposition 8 met none of those obligations.  It was in discussing the first two that he put the heaviest stress on the issue of their right to pursue an appeal.  In the Ninth Circuit, the proponents will have to satisfy the same four standards that Judge Walker said they had failed.

Nothing in Walker’s opinion will bar the proponents of the ballot measure from seeking a stay, either from the Circuit Court or from the Supreme Court.  As formal parties to the case (as “intervenors”), they can ask.  But then the issue arises, as to their chance of success, whether they are in a legal position to press the issue on appeal to a conclusion on the merits.  If they are not, they could not win, and thus would have fallen short of one of the key requirements for getting a delay.

If it turns out that the Proposition 8 backers do not have standing to pursue their appeal, there remains the question whether someone else would have such a right.   Imperial County, Calif., and its board of supervisors have pursued a separate appeal to the Ninth Circut (now docketed as 10-16751); the initial issue in that case is whether the county and its governing body should have been allowed to join in the case as intervenors; they sought to do so to defend the gay marriage ban, when state officials declined to do so.  Judge Walker refused to allow them to enter.  In his new ruling on Thursday, Walker included language that suggested that he very much doubts that a local government in California would have standing to pursue an appeal when the state does not.  (In a docketing letter on Wednesday, the Circuit Court set a briefing schedule in the Imperial County case that is slightly later than that it had laid out for the appeal by the Proposition 8 backers.)

(READERS NOTE:  The Ninth Circuit Court has created a special website for the appeals in both of  the Proposition 8 cases.  It can be found at this link.  There is also a listserv to which one can subscribe for notices of activity in those cases.)