A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral argument yesterday in Perry v. Schwarzenegger, the challenge brought by gay and lesbian couples to Proposition 8, the California ballot initiative that amended the state’s constitution to limit marriage to opposite-sex couples only.  After a marathon argument that went on for more than two hours, at least one thing seems clear: Prop. 8 will likely not survive its journey through the federal courts in California.

The big question after yesterday’s argument is how broad or narrow the appeals court’s eventual ruling will be.  Will the judges decide that it is unconstitutional for state voters to take away same-sex couples’ rights to marry in a state where gay men and lesbians previously enjoyed the right to marry the person of their own choosing?  Will the judges go further, and rule that the U.S. Constitution protects a fundamental right to marry the person of one’s choice, which applies equally to gays, lesbians, and heterosexuals, and thus that every state in the Nation must afford all of its citizens the equal right to marry?  Or will the judges never even reach the merits of the case, deciding instead that the official backers of Prop. 8 do not have the legal authority to appeal the lower court ruling that struck the law down?

The Question of “Standing”: Who Can Defend Prop. 8 in Court?

The Ninth Circuit judges on the Perry panel—Judge Stephen Reinhardt, Senior Judge Michael Daly Hawkins, and Judge N. Randy Smith—all seemed very concerned about the issue of whether or not the backers of Prop. 8 had legal standing to defend it in court.  The court allotted a remarkable two hours of argument time for Perry, and the entire first hour was devoted to the standing question.  This issue is very important: If the Ninth Circuit finds that the Prop. 8 proponents have no standing to appeal the lower court’s ruling striking down the ban on marriage for same-sex couples, it may not ever get to the actual question of whether such a ban is constitutional.

The standing requirements for federal courts are drawn from Article III of the Constitution, which speaks of the judicial power to hear “cases” and “controversies” and has been interpreted by the Supreme Court to require that every party to a dispute must show that they would be affected in some concrete way by the law or by the court’s decision.  The Supreme Court has long held that simply disagreeing with a law isn’t sufficient injury to confer standing.

Usually, state laws that are challenged in court are defended by the state’s Attorney General or Governor.  The question in Perry is what happens when the Attorney General and other top state officials refuse to defend a voter-passed ballot measure—can the individuals who funded and worked for passage of the proposition then step in?

After the legal dream team of Ted Olson and David Boies, who represented Bush and Gore respectively in the Supreme Court case that determined the contested election of 2000, filed their lawsuit on behalf of several gay and lesbian couples seeking to overturn Prop. 8, both Governor Arnold Schwarzenegger and Attorney General (and now governor-elect) Jerry Brown declined to defend the ban on same-sex marriage.

We know at least two of the panel’s judges would probably like to find that the backers of Prop. 8 have standing to appeal.  Judge Reinhardt, the presiding judge of yesterday’s panel, and Judge Hawkins ruled in another ballot measure case (involving an initiative that made English the “official” language of Arizona), that the measure’s sponsors had standing to appeal a lower court ruling striking down the measure when the state declined to defend the measure’s constitutionality.  But, as Judge Hawkins pointed out yesterday during argument, they were apparently on the “wrong side”:  the Supreme Court, in a unanimous 1997 ruling written by Justice Ruth Bader Ginsburg, expressed “grave doubts” that such standing existed.  (The Court vacated the Ninth Circuit’s ruling on other grounds.)  “

Despite these Supreme Court musings, Judge Smith, a relatively recent George W. Bush appointee, seemed to agree with his more liberal colleagues’ inclinations on standing.  Yesterday he asked whether Governor Schwarzenegger and AG Brown were able to effectively nullify the efforts of the Prop. 8 supporters and the will of the majority of California voters who approved the measure by not appealing the District Court’s ruling striking down the law.  After all, the initiative process was designed to empower the people to make laws when state officials refused.  As UCLA Law Professor Adam Winkler has observed, the very purpose of direct democracy could be undermined if state officials could simply ignore the voters’ will and no one would be able to defend the law in court.

But there could be a way out for the panel.  One idea that Judge Reinhardt seemed keen on yesterday was the possibility of certifying the question to the California Supreme Court, asking them to clarify whether proponents of a ballot initiative have standing to defend it in court under California law.  This isn’t merely passing the buck on hard questions; federal courts can certify questions to state supreme courts when a federal case involves questions of important, unresolved issues of state law that are necessary to resolve the federal matter.  The state supreme court will send back an answer to the federal court, resolving the state law question, and the federal matter will continue accordingly.

Is Prop. 8 Constitutional?

When the Ninth Circuit finally reached the second hour of yesterday’s arguments and turned to the actual question of Prop. 8’s constitutionality, marriage equality seemed to fare very well.  Prop. 8, not so much.

To start with, Chuck Cooper, the highly skilled lawyer representing Prop. 8’s supporters, had a difficult time articulating the reasons for Prop. 8’s ban on marriage for same-sex couples.  Cooper tried the “for the sake of the children” route, arguing that the State has an interest in encouraging heterosexual marriage so that children will be born into two-parent homes.  Judge Reinhardt pointed out that Cooper’s argument might be a good argument for outlawing divorce, but doesn’t appear to have any bearing on whether gay and lesbian couples should also be able to get married.

Judge Smith didn’t see why all of this even matters to Prop. 8 supporters: California gives gay and lesbian couples the same state law rights as “married” couples, so what would really happen if the court decides that the word “marriage” applies to same-sex couples, given that they have all the state law rights of marriage, just not the title?  Even under the lowest level of scrutiny a court will give a potentially discriminatory law, the reasons for its enactment must still be rational.  Giving gay men and lesbians the rights of marriage, but purposefully excluding them from the title of “marriage” for no good reason seems to be based on little more than the bare desire to exclude.

Cooper then pressed the idea that the will of the people of California must be respected and that they can have their exclusionary, arguably pointless, definition of marriage if they want so long as a majority votes for it.  But the judges yesterday would seemingly have none of that, and rightly so.  As Judge Hawkins got Cooper to concede, the people of California could not vote to reinstate school segregation.  The Constitution stands for the proposition that some rights aren’t put to a vote.  Equality before the law is one of those rights.

As Ted Olson pointed out in his eloquent and stunningly effective presentation to the court—seriously, Olson’s argument was so fantastic he was allowed to speak for significant periods of time without interruption by the judges—the Constitution’s 14th Amendment protects the fundamental right to marry the person of one’s own choosing regardless of whether one is a man or woman, white or black, gay or straight.  Cooper conceded that this right to marry may not be denied on the basis of race, but drew the line there.

However, as argued in the amicus brief of the Constitutional Accountability Center, the text of the 14th Amendment’s guarantee of the “equal protection of the laws” and “due process” for all “persons” is sweeping and universal.  In fact, the drafters of the Amendment considered and rejected a proposal that would have made the 14th Amendment’s guarantee of equality specifically targeted at racial discrimination.  They intentionally crafted a broader constitutional guarantee of equal rights under the law.

While the framers of the 14th Amendment were looking for a broad answer to discrimination, it seems Judge Reinhardt was looking yesterday for a narrow one.  He repeatedly asked Olson whether the court could simply decide that taking away the right to the title of marriage from same-sex couples in California, which they enjoyed for a short window of time before Prop. 8 was passed, is unconstitutional.  Olson agreed that they could by simply applying the Supreme Court’s decision in Romer v. Evans, a 1996 case in which the Court found in favor of gay Coloradans who challenged an amendment to the state’s constitution that prohibited any level of government from enacting anti-discrimination measures that protected gay men, lesbians, and bisexuals.  By applying Romer, the Ninth Circuit could issue a somewhat narrow ruling saying that taking away rights from gay men and lesbians—kind of Lucy-with-the-football style—is clearly unconstitutional, without ruling more broadly that the Constitution protects the fundamental right of marriage across the board—i.e., that Charlie Brown has an affirmative right to kick the football.  But Olson also refused to give up the point that the Constitution also protects the right to marry in and of itself, even if the Ninth Circuit could take the narrow way out.  Marriage discrimination cannot be justified under any standard of constitutional analysis.  This is a powerful point, and not just because it was eloquently made by Ted Olson, George W. Bush’s Solicitor General and one of the most famous conservative lawyers in the country.

What’s Next for Prop. 8 and Marriage Equality?

The supporters and opponents of Prop. 8 must now wait for action from the Ninth Circuit.  If the Ninth Circuit decides to certify the question of whether the backers of Prop. 8 have standing to defend the law to the California Supreme Court, we could see something in the next few weeks or even days.  But if the Ninth Circuit panel decides to issue a ruling without asking the California Supreme Court to weigh in—even if it goes for the narrower route striking down Prop. 8—the ruling could take anywhere from three months to a year.

At that point, the losing side will decide whether to ask a broader panel of 11 judges from the Ninth Circuit to review the three-judge panel’s ruling in an en banc proceeding.  Either after an en banc proceeding or perhaps even just after the panel’s decision, the losing side will undoubtedly appeal to the U.S. Supreme Court.

But for now, we’ll just have to wait.