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In 9th Circuit brief, San Francisco takes the idea of Prop 8’s proponents representing California’s interests to its logical conclusion

9th Circuit Court of Appeals Briefs Prop 8 trial

By Jacob Combs

For those of you who might not have had a chance to read last week’s reply briefs to the 9th Circuit regarding the California Supreme Court’s recent decision in Perry, the arguments are much what you’d expect.  The plaintiffs (our side) make the case that the state court ruling, while providing the proponents of Prop 8 with standing to represent California’s interest under state law, does not in any way provide them with standing under federal law to pursue the appeal.  The proponents, of course, want the 9th Circuit to interpret the CA Supreme Court’s ruling to mean they can represent the state’s interest in federal court.  The plaintiffs argue that even if the proponents can represent’s California’s interest in the 9th Circuit, they still cannot show any particularized damage (that is, harm to themselves) if Prop 8 is struck down, and thus should not be granted federal standing.

It’s not surprising that the two sides disagree on the issue, and it is of course the 9th Circuit that will have to make a decision regarding federal standing.  When I was reading through the briefs, however, one argument struck me as unexpected, which I thought was worth examining in a little more detail.

In its accompanying brief, the City and County of San Francisco makes the provocative point that if the proponents of Prop 8 are indeed permitted to represent California’s interest in the ballot initiative, they cannot do so in a way that is inconsistent with state law and policy.  As San Francisco points out:

The California Supreme Court has authoritatively construed Proposition 8 to leave intact all substantive rights that California’s Constitution previously conferred on same-sex couples: the right to enter into officially recognized family relationships and the right to have and rear children.

The city then goes on to point out that the proponents’ defense of Proposition 8 depends on arguments that run contrary to California law, such as statements regarding the proposition’s intent to promote responsible procreation and to acknowledge supposed uncertainty about the ability of same-sex couples as parents.  Under California law, same-sex couples are recognized as the equals of heterosexual couples when it comes to parenting, and marriage (whether same-sex or heterosexual) is in no way related to the ability to procreate.

The brief concludes with an devious but brilliant logical twist:

If the Court agrees that they are acting as representatives of the people of California and are proper parties to invoke appellate jurisdiction, it should treat the campaign and ballot arguments made by Proponents as the State’s own statement of its interests in enacting Proposition 8—and should hold that those interests are not legitimate state interests under even the least demanding test.

San Francisco’s brief is intriguing because it points out yet again just how thin the proponents’ case really is.  In seeking to defend Proposition 8 on the state’s behalf, the proponents must prove the state has a legitimate governmental interest in enacting the initiative.  When the proponents’ own admissions about the intent of Prop 8 go directly against the state’s past decisions regarding the legitimacy of same-sex relationships and families under California law, it makes their case even less convincing and shows just how unfair Proposition 8 really is.


  • 1. Bob  |  December 6, 2011 at 3:21 pm

    great point Jacob, it does show how unfair Proposition 8 really is…. let's hope for a quick conclusion to this nonsense!!!!!!!!!! our day is coming EQUALITY NOW

  • 2. Sagesse  |  December 6, 2011 at 4:24 pm


  • 3. PoxyHowzes  |  December 6, 2011 at 4:25 pm

    Therese Stewart has impressed me from the start (but IANAL) as a brilliant strategist, anything but a "footnote" to Bois and Olsen.

    This brief was a masterpiece in letting the 9th circuit know exactly what a mess it will get into if it grants standing, in establishing strong and explicit for any number of plaintiff appeals, and perhaps in laying the groundwork for numerous appeals-court slapdowns of the folks supposedly appealing the "state's" interest.

    At best, the proponents will be forced to assert that whatever the consequences of the Prop8 vote, whether the consequences were intended or not, then those consequences are what the voters wanted.

  • 4. sfbob  |  December 6, 2011 at 4:44 pm

    I noticed the same thing when I read the brief and I thought the points made were excellent. There is a manifest contradiction between the intent of Prop 8 and settled precedent under California law.

  • 5. Thark  |  December 6, 2011 at 4:52 pm

    It's all over for illegal "constitutional" marriage bans but the scene.

    And the curtains on that scene will likely come down on The DarkSide THIS December 8…

    (Which means it's *curtains" for "laws" aimed at gays and only gays…)

  • 6. Steven  |  December 6, 2011 at 5:01 pm

    This is why I believe that CA Supreme Court's decision is the wrong decision. I believe 9th Circuit grants standing based on CSC decision it may backfire on them from USSC.. Prop 8 DOES NOT REPRESENT STATE'S INTEREST

  • 7. grod  |  December 6, 2011 at 5:36 pm

    PoxyHowzes: In earlier threads, I stated the same conclusion. In Appeal Court, last December Ms Stewart was the most articulate and agile of those who addressed the Court. Regretfully the points raised here will not be heard in open Court. But they will be on the record. G

  • 8. karen in kalifornia  |  December 6, 2011 at 6:00 pm

    This is brilliant. Thank you San Francisco.

  • 9. Drpatrick1  |  December 6, 2011 at 7:12 pm

    It is hard in a case like this which seems to affect us in such personal ways not to take things personally. This is made even more difficult in our courts adversarial process; an us vs them mentality naturally arises. I would like to urge caution with seeing the standing issue as an us, the queer community, vs them, the bigots and I don't use that term lightly, scenario. The 9th circuit didn't ask the CASC their opinion on standing for no reason. They were overruled…well not exactly, but just keep reading…in arizonans for official English with respect to standing in a very similar case with respect to standing. They want there to be standing in cases like this, and they want desperately to rule on the merits in this case. They can only reach the merits with standing, and they can only get standing from the CASC. They want to dare the SCOTUS to rule on the merits. They will certainly rule the proponents have standing, based on the CASC ruling they can represent the state of California. This should not be seen as a loss on our side. It is merely a procedural issue and has nothing to do with our rights.

    The "problem" for our side is that the SCOTUS does NOT want to rule on the merits. They would love to find a procedural issue like standing with which they can avoid the case. Undoubtedly will win win in the 9th on the merits. Then the full circuit will refuse to hear the case en banc. Then the bigots will appeal to the SCOTUS, where it will be granted cert, but they will rehash standing. There will be a unanimous decision overruling the 9th circuit on standing. What will this mean? Well, I'd like it to mean that the district courts ruling stands and prop 8 is dead in CA, but only in CA. It will leave the findings at trial as precedent, though this is not as strong as SCOTUS precedent. But it may be able to be used in other cases to help bolster our side. It will at least force other courts to address walkers ruling. However, I fear that this may actually vacate walkers ruling. Not sure about this one.

    What I like about SF's brief is that it would seem that any justice ruling against us would have to do so only with arguments that pass muster per the state of california, which is to say they won't be able to argue that marriage is for children as the CASC already ruled that parental rights and family law is unaffected by prop 8. Thus, no matter how hard the bigots push this argument, it should have no effect. We all know that since prop 8 only took away the word…emotionally a very important word, but legally with respect to rights in CA there isn't supposed to be any difference…it is even more difficult to argue that word is being denied for any reason than bigotry.

    But in the end, prop 8 won't get past the procedural issues and thus will not set SCOTUS precedent. Oh how I wish I was wrong….

  • 10. PoxyHowzes  |  December 6, 2011 at 8:05 pm

    Actually, the 9th is gonna have it both ways, just as Judge Walker did in many instances when he took an objection "under advisement" and then let the arguments proceed.

    The 9th will issue their ruling on all the disputes (standing, vacating Walker, public video, and merits) all in one fell swoop, and let the devil take the hindmost. At least one of those rulings, if not all 4, will be against the proponents/intervenors, and so will be appealed. The 9th is not interested, I think, in an en banc hearing, and so the appeal will go to SCOTUS. There's no chance at all that SCOTUS will take the case on any issue but (a) standing, or (b) merits, and they might not take an appeal on those grounds, preferring to leave marriage equality alive in just one more state rather than in the whole USA.

    But again, I'm not a betting person not am I a lawyer

  • 11. PoxyHowzes  |  December 6, 2011 at 8:06 pm

    NOR am I a lawyer

  • 12. Str8Grandmother  |  December 6, 2011 at 8:11 pm

    grod & Poxy, Totally agree with you, Therese Stewart is brilliant. She thinks quick on her feet and you can see that she is a master in her craft. I am so glad she is on our side.

  • 13. Str8Grandmother  |  December 6, 2011 at 8:24 pm

    I think the Supreme Court will take the case once it gets there because it is their job and I don't think they will shirk it. Scalia, & Alito will be chomping at the bit to take it, Thomas won't care, and there will be enough of the moderate Justices to grant cert. It is an important legal issue and I think they will step up and take the case.

    I strongly believe in this case, the defense called only 2 measly witnesses, would I want -this case or some other case that has more experts from the opposing side- to eventually make it up there. As for me I'll take this case. We have a great case, why start all over again? I just hope they get standing. Is it Thursday yet? I think we will get a decision within 10 days or at least before Christmas. The Appeals Judges are aware that it has now been a full year since oral arguments on the merits. I think they will work extra fast to get out a decision.

  • 14. SeattleRobin  |  December 6, 2011 at 10:34 pm

    When San Francisco's brief was posted here the other day I pointed out the same thing as in this post. I was utterly fascinated by how clever it was at trying to trap the proponents into a very narrow box from what they can legitimately argue. Of course, the Court doesn't have to agree with her argument if standing is granted, and thus limit them, but it sure as heck is a brilliant move.

    As to SCOTUS on appeal, my feeling is that even if it gets past standing and is decided on the merits, the decision would be narrowly tailored to apply only to California. I don't think the Court wants to rule broadly on the topic yet. I think it will take some future case that isn't quite as specific in order to get a decision that will apply to the entire country. I'd love to be mistaken though.

  • 15. sfbob  |  December 7, 2011 at 12:02 am

    I suspect you're last view is the correct one. SCOTUS will have to deal with this case one way or another but however they rule, it will be narrow.

    Everything I've gleaned from the prior discussions on marriage equality cases (and I mean all of them, not simply this specific one) is that SCOTUS tries, as far as they possibly can, to avoid having to issue rulings on cases pertaining to what they'd view as family law (and marriage certainly falls under that heading). The basis for their reluctance is the view that the Tenth Amendment pretty much delegates the regulation of marriage to the states, so unless (as was the case with Loving vs Virginia) there were other matters involved, they will punt as much as they can. One could of course argue that our case is equivalent to Loving, but I don't know if the current court would want to go on the record as making that equivalence. They'll try to find a technical reason to postpone a once-and-for-all ruling on LGBT equality and marriage rights for us until they simply have no way of avoiding the issues…or until a future, more progressive court is willing to stand up for us.

    Most people seem to believe that SCOTUS could not possibly hear the Prop 8 case until 2013, after which the election will have taken place. The outcome of the election is likely to have a great deal of influence on any future ruling as it will signal to the court which way the wind is blowing. I'm not saying they SHOULD interpret the results of the election that way, simply that it is likely they will.

  • 16. Steve  |  December 7, 2011 at 2:47 am

    Also, when Loving v Virginia was decided there were maybe 15 states left that outlawed interracial marriage. All in the South. By contrast there are 30 states that outlaw same-sex marriage. SCOTUS usually doesn't want to get too far ahead on things.

    It's set a precedent that others will use in state-specific cases, sure. But they have to decide this for CA only

  • 17. TomTallis  |  December 7, 2011 at 6:09 pm

    I still think that the Ninth Circuit will rule narrowly. The California Supreme Court left all of the same-sex marriages (including mine) that were contracted when same-marriage was legal in California stand, and as has been pointed out, in that same ruling left untouched all of California's laws and policies that were in place prior to November 8, 2008 in place. That means that there are approximately 18,000 legally married same-sex couples in California, and an unknown large number of otherwise identically situated same-sex couples who wish to marry bur are prohibited from doing so under Prop H8.

    I think the 9th Circuit will pick up that ball and run with it, ruling Prop H8 unconstitutional under the equal protection clause and applying it only to California, the only state with married same-couples and other same-couples who are not permitted to marry. In that case, I think that the SCOTUS will decline to hear any appeals and we will be done.

    Of course I can also see the NOMmies submitting another ballot measure to try to undo the currently existing same-sex marriages.

  • 18. thark  |  December 8, 2011 at 12:56 pm

    And it's rather delightful to point out that the stay on Marriage equality in CA is by no means a permanent condition as Flop 8 attempts to hobble up the stair of the USSC. There is just as much likelihood that the standing issue will point out that the proponents are factually unaffected, Flop 8 or no Flop 8, whereas gay couples have proven injurious effect. Under oath.

    How fun it would be, that marriage equality is restored before the appeals proceed. The DarkSide, hobbled by the same sort of "legal" technicality that has temporarily allowed Flop 8 to infest the CA constitution in the first place!

    And with the Catholic hierarchy SO active, a recusal for Scalia and Thomas -who are on record as antigay for "religious" reasons (i.e. their Spiritual Leaders, shepherds of what's left of their souls, have spent huge capital proclaiming that their "faithful" won't or can't get to heaven unless they're mean to gays and only gays.

    Bias plain and simple.

  • 19. thark  |  December 8, 2011 at 12:58 pm

    Turns the DarkSide's expected 5-4 ruling AGAINST equality in America…right on its head~

  • 20. Marco Luxe  |  December 8, 2011 at 6:46 pm

    It would have been rich to have the pro-equality advocates bring up the question of impartiality of judicial members of Opus Dei to rule on abortion issues, instead of bringing up a female judge's questioned impartiality on that issue. That would have brought an awkward pause in the courtroom at Scalia's expense.

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