Supporters of same-sex marriage have urged a federal appeals court to end the constitutional fight over “Proposition 8” by ruling that no one still in the case has any right to pursue an appeal. In a lengthy new brief (found here) filed Monday, the same-sex couples also sought a ruling that a federal judge had authority to strike down Proposition 8, and to do so throughout California. The city and county of San Francisco also filed a new brief against Proposition 8 (found here). In addition, the same-sex couples filed a brief opposing a separate appeal by officials of California’s Imperial County; that document is here.
One more round in the briefing schedule — a final brief by backers of Proposition 8 — is due on Nov. 1, setting the stage for a hearing before a three-judge panel of the Ninth Circuit Court during the week of Dec. 6. The case is being heard by the Circuit Court on an expedited schedule. A final ruling by the panel thus could come fairly early in the new year.
U.S. District Judge Vaughn R. Walker of San Francisco ruled on August 4 that Proposition 8 — a ban on same-sex marriage approved by California voters in 2008 — violates two provisions of the federal Constitution: the guarantee of legal equality and the guarantee of due process, both under the Fourteenth Amendment. The backers of the ballot measure and officials of Imperial County have filed appeals in the Ninth Circuit.
While the high-profile case has gained notoriety because of the battle over whether a state can constitutionally deny marriage rights to one identified group — same-sex couples — other issues have emerged as the case has proceeded in the Ninth Circuit. A key issue is whether someone other than state officials, who have refused to appeal Judge Walker’s ruling, can carry on the fight through an appeal. A second issue not tied to the merits of the constitutional fight is whether Judge Walker’s decision should be thrown out on the theory that he had no jurisdiction to decide it because there was no real contest over it if Proposition 8’s backers could not do so.
The same-sex couples who won the case in Judge Walker’s Court filed 107 pages of legal argument on Monday, mounting a full defense of the decision against Proposition 8, but also answering arguments of the supporters of that measure on the other issues.  If the Ninth Circuit were to rule as the couples asked on those other issues, the appeals would be thrown out for lack of jurisdiction because no one now had “standing” to appeal, and Judge Walker’s ruling would stand as issued.  That would set the stage, then, for an appeal to the Supreme Court — initially on the “standing” issue, at least.
If the Circuit Court does allow either the Proposition 8 backers or the Imperial County officials to go ahead with their appeal, it now appears that the dispute on the constitutionality of that measure would come down — in essence — to two starkly contrasting arguments. The supporters of Proposition 8 contend that the measure is valid because same-sex couples are pursuing an entirely new constitutional right — a previously unrecognized right to marry someone of the same sex, running counter to age-old tradition. By contrast, the opponents of the measure argue that it is unconstitutional because gay couples had the right to marry in California, under a state supreme court ruling, and that was taken away from them, singling them out for discrimination as they pursued a right open to virtually all others.
Each side, of course, has an array of allied arguments, but acceptance of one or the other of those foundation views very likely would decide the case, if the merits is going to be reached. In many legal battles over gay rights, opponents have often argued that there is a gay “agenda” to create out of whole cloth a new right just for gays, while supporters have often countered that they are not seeking anything new, but simple equality to existing rights shared by others. Those conflicting themes have now played out in the written merits arguments before the Ninth Circuit.
Getting to that basic dispute, however, has become complicated in the wake of decisions both by California’s governor and its attorney general not to defend Proposition 8, either before Judge Walker or, now, before the Circuit Court. Those who prepared and pushed the ballot measure to success were allowed to join in the case before Judge Walker, on the theory that they would provide a defense of it. But allowing that intervention, as the judge did, did not settle whether they could stand in for the state officials when the question of an appeal came up.
The Proposition 8 backers now contend that California law gives them a right to take the state’s place in defending the measure but that, if they don’t have standing now, then there was no contest before Judge Walker, either, so his ruling should be voided as beyond his jurisdiction. They also have contended that, even if the judge did have authority to decide the case, he had no power to permit any same-sex couple to marry other than the two couples directly before him.
The same-sex couples, in their brief, argued that California law does not give anyone to represent the state’s interest when the state will not do so itself. The Proposition 8 supporters were allowed into the trial, the brief said, only to defend their interest in the measure, not the state’s, and their personal interest is not strong enough to give them constitutional “standing” to appeal. Moreover, they argued, there was a live contest before Judge Walker, and there remains one over Proposition 8 even now, because the state has continued to enforce the ban as the court case unfolded.
In addition, the couples asserted that a sweeping order against enforcing Proposition 8 anywhere in California was necessary because Judge Walker found the law was unconstitutional as written, not just as it would be applied to the challenging couples.
In replying to the effort of Imperial County officials to gain “standing” to pursue the appeal, on their own or in tandem with the Proposition 8 backers, the same-sex couples’ briefs argued that the county simply has no interest in the issue separate from the state, and that county officials under California law cannot pursue a marriage policy different from that of the state as a whole.
The new merits brief filed by the city and county of San Francisco is confined to the merits of the constitutional issue. Â The city and county were allowed into the trial to show the effect on government operations of Proposition 8.
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