09 September 2010

Ruling Invalidating Prop 8 May Escape Appeal

Opponents of California's Proposition 8, which ended judicially created gay marriage in the state, filed suit to find it unconstitutional and prevailed at trial in federal court.

The State of California, having lost the suit at trial, refused to appeal the ruling. Supporters of Proposition 8 attempted to compel the state to appeal the ruling and defend Proposition 8. The California Supreme Court held today that the state was not required to appeal the trial court ruling holding that Proposition 8 was unconstitutional.

It will now be up to a federal appeals court, and possibly the U.S. Supreme Court, to decide whether Prop. 8's sponsors have legal standing - the right to represent the state's interests in defending one of its laws. . . .

After the nation's first-ever federal court trial on the issue, Walker ruled Aug. 4 that Prop. 8 discriminates on the basis of sexual orientation and gender and violates same-sex couples' right to equality in marriage.

The Ninth U.S. Circuit Court of Appeals in San Francisco suspended the ruling until it hears the case in December. But the court also asked Prop. 8's sponsors to explain why they have standing to appeal Walker's decision if state officials refuse to do so.

Walker had allowed the sponsors, Protect Marriage, to defend Prop. 8 at the trial. But he questioned their standing to appeal, citing a 1997 U.S. Supreme Court ruling that raised doubts about the right of a ballot measure's proponents to represent the state's interests.

The 1997 Supreme Court case in question is Arizonians for Official English v. Arizona. In that case, the U.S. Supreme Court held that a constitutional challenge to an Arizona ballot issue was a moot issue and that the federal courts were as a result without jurisdiction to rule on the case. But, in dicta, the U.S. Supreme Court suggested that it had grave doubts about the standing of ballot issue supporters to appeal a ruling holding a ballot issue unconstitutional if elected officials chose not to appeal that ruling. The discussion in the unanimous decision on a writ for cert brought by the ballot measure supporters was as follows (some citations omitted):

The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. The decision to seek review "is not to be placed in the hands of `concerned bystanders,' " persons who would seize it "as a `vehicle for the vindication of value interests.' " An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements of Article III."

In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).

AOE also asserts representational or associational standing. An association has standing to sue or defend in such capacity, however, only if its members would have standing in their own right. The requisite concrete injury to AOE members is not apparent. As nonparties in the District Court, AOE's members were not bound by the judgment for Yniguez. That judgment had slim precedential effect, and it left AOE entirely free to invoke Article XXVIII, §4, the citizen suit provision, in state court, where AOE could pursue whatever relief state law authorized. Nor do we discern anything flowing from Article XXVIII's citizen suit provision--which authorizes suits to enforce Article XXVIII in state court--that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court.

We thus have grave doubts whether AOE and Park have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue.

So, the Proposition 8 supporters can only appeal the trial court's ruling if the can show that they, or their members, would suffer a "concrete injury" if the ballot issue was held unconstitutional that is separate and apart from any injury they suffered related to the process of getting the issue on the ballot and campaigning to have it made a law.

In other words, they only have standing if failing to prevent someone else from getting married constitutes a concrete injury to them. Since the reasons that someone would oppose gay marriage are largely symbolic (particularly in California which already has a domestic partnership law that confers rights comparable in most legal details to marriage), this may be a difficult showing for them to make.

The 9th Circuit have scheduled a December hearing date in the case, and would likely decide the standing issue after that hearing. The only direct appeal the initiative supporters would have at that point, would be to the U.S. Supreme Court. A binding precedent from the 9th Circuit that they lacked standing would probably preclude them from bringing a new suit in a trial court in their own right to declare that the Proposition was constitutional.

The U.S. Supreme Court has every reason to refuse to disturb the 9th Circuit's decision if it finds that the ballot issue supporters lack standing. It has already telegraphed in prior dicta, its support for a ruling of that kind, and the current court has, if anything, become less favorable to citizen standing claims than it was in 1997.

If it agrees that standing is absent, then California gets gay marriage, as the federal trial judge, Governor of California and Attorney General of California all agree that it should, and the U.S. Supreme Court gets to avoid making a national rule of federal law on the constitutionality of gay marriage prohibitions binding on the national as a whole until a new case comes along, if ever. The California federal trial judge's ruling, unlike a U.S. Supreme Court ruling, is not binding as a precedent on any other state.

So, I am cautiously optimistic that gay marriage may return to California sometime in 2011.

This in turn, could be a tipping point for the nation as a whole.

If California is added to the list of states that permit gay marriage, it will become increasingly commonplace, and if another recent decision, holding that the Defense of Marriage Act is unconstitutional, at least as applied to the federal government's non-recognition of a state law same sex marriage, then the federal government would have to treat same sex marriage couples domiciled in states that allow those marriages as married for purposes of federal laws like the tax code, federal employee benefits laws, and social security laws.

When one reaches a point where a large number of states allow gay marriage and the federal government recognizes those marriages, the Defense of Marriage Act that permits states to refuse to recognize same sex marriages, looks increasingly odious, as do the laws banning gay marriage in other states where ballot initiatives, legislative action or court decisions could change those laws.

While it is inconvenient, it certainly isn't an insurmountable barrier for a same sex couple to move to a state where same sex marriage is legal and get married there. And, treating couples as married in one state, and not in another, is not an easy task, particularly if you are a federal government agency charged with making sense of the situation. Even if a court does not find that the Defense of Marriage Act is unconstitutional as applied to full faith and credit obligations of states, Congress may decide that it is easier for it to simply repeal that law.

The further the tide turns, the more accepting public opinion will be, and the harder it will be for the tide to turn back. While the U.S. Supreme Court may be reluctant to make a Loving v. Virginia ruling for same sex couples today, it might be willing to do so in a few years, when the legal landscape and public opinion have shifted.

UPDATE: "Don't ask, don't tell" is declared unconstitutional by a federal judge in this (long pdf) ruling.

If President Obama chose not to appeal this ruling, he would have a much easier case to establish that no one has standing to second guess his decision than the proposed intervenors in California.

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