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Filed under: 9th Circuit Court of Appeals

Analysis: Supreme Court rules Prop 8 proponents lack standing, restores marriage equality to California

By Jacob Combs

In a narrow yet major victory for marriage equality, the Supreme Court ruled today that the proponents of Proposition 8 did not have standing to defend the law in Court, paving the way for equal marriage rights to return to California.  The ruling focused specifically on issues of standing, but will allow a lower court ruling that invalidated Prop 8 as unconstitutional to stand as the final say on the issue.

First, the ruling itself, which was written by Chief Justice Roberts and joined by an unusual coalition of Justices Scalia, Ginsburg, Breyer and Kagan.  As the Chief Justice noted early in his opinion, “Federal courts have authority under the Constitution to answer such questions [of constitutionality] only if necessary to do so in the course of deciding an actual ‘case’ or ‘controversy.’ … It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.”

To briefly rehash the history of the Prop 8 challenge, the original lawsuit was brought by two same-sex couples who had been denied marriage licenses by their county clerks.  When California’s governor and attorney general declined to defend Prop 8 in court, the measure’s official ballot proponents stepped in to defend the law.  The two couples succeeded in winning a district court ruling that Prop 8 was unconstitutional, and the proponents appealed to the Ninth Circuit, where they lost, and then to the Supreme Court.

The central question in today’s Prop 8 decision is whether or not the proponents had the right–known technically as Article III standing–to defend Prop 8 in federal court.  In order to do so, the Chief Justice wrote, the proponents would have had to assert “a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision.”  As he wrote in his opinion today, Roberts determined them unable to do so:

The only individuals who sought to appeal that order were petitioners, who had intervened in the District Court. But the District Court had not ordered them to do or refrain from doing anything…. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.

In court, the Prop 8 proponents argued that even if they did not have an individual, particularized interest in defending the law, they were authorized to represent California’s own interest in the constitutionality of the measure, relying in large part on a 2011 California Supreme Court ruling that staked out this argument.

Roberts disagreed with that holding, citing the 1991 holding in Powers v. Ohio that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”  He distinguished the Prop 8 litigation from a case from New Jersey called Karcher v. May in which New Jersey state legislators were permitted to defend a law after the state’s attorney general refused to do so, writing that the Supreme Court specifically ruled those legislators lost the right to defend the law after they left office.

Roberts also cited a passage from the Court’s ruling in Arizonans for Official English to refute the proponents’ arguments based on the California Supreme Court ruling, writing that the state court’s decision answered only whether the proponents had “the authority to assert the State’s interest in the initiative’s validity” and did not authorize them to act “‘as agents of the people’ of California.”

Dissenting from Chief Justice Roberts’s majority ruling, Justice Kennedy–joined by Justices Thomas, Alito and Sotomayor, repeatedly asserted that the Supreme Court should have accepted the California Supreme Court’s arguments and granted standing to the proponents:

[T]he State Supreme Court’s definition of proponents’ powers is binding on this Court. And that definition is fully sufficient to establish the standing and adversity that are requisites for justiciability under Article III of the United States Constitution.

In his conclusion, Chief Justice Roberts wrote that the Court would not change its previous holdings on ballot proponents’ standing, and sent the Prop 8 case back to the lower courts:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.

This last paragraph of the ruling means that the Ninth Circuit’s decision invalidating Prop 8 is essentially nullified, since the proponents did not have standing to appeal to the circuit court in the first place.  Judge Vaughn Walker’s decision, then, is now the final ruling on the law, and will apply only to California.

Some have argued that the Supreme Court’s decision should only affect the two couples who filed suit against Prop 8, or the two counties in which the couples reside, because the suit wasn’t brought on behalf of California’s same-sex couples as a class.  This argument has little merit: Judge Walker’s district court injunction was worded to apply to California’s governor and attorney general, as well as all of the state officials under their authority.

In a statement following the ruling, California Governor Jerry Brown announced in plain terms that ” the district court’s injunction against Proposition 8 applies statewide and that all county clerks and county registrar/recorders must comply with it.”  This determination was based on a legal opinion from the office of California Attorney General Kamala Harris.

There is a 25-day window during which a petition for rehearing can be filed with the Supreme Court, although such petitions are rarely granted.  After that time, the Supreme Court’s opinion will become official and its instruction to the Ninth Circuit to lift its stay against Judge Walker’s injunction will be in effect.  The Ninth Circuit could choose on its own accord to lift the stay before that 25-day window has shut, which would allow same-sex couples in California to wed even sooner.  In either case, marriages should return to California within a month’s time.

We’ll have continued coverage of the Prop 8 case in the next few days and Scottie will be posting an in-depth analysis of the DOMA ruling later this afternoon.  Congratulations, California!

1 Comment June 26, 2013

Golden Oldie: BREAKING: Proposition 8 ruled unconstitutional by 9th Circuit panel

We at P8TT are taking Christmas through New Year’s off, with occasional light posting. Golden Oldies will run in the place of regular posts. Today’s is to recall the big news back on February 7th, when the Ninth Circuit Court of Appeals issued a decision upholding Judge Walker’s ruling striking down Prop 8 as unconstitutional. The circuit court’s full decision is below. It spurred an incredibly vibrant comment thread with 289 comments on the decision, which you can find here.

Regularly scheduled programming will resume on January 2nd–Jacob Combs

By Jacob Combs and Adam Bink

Continual updates on today’s ruling will be published at the bottom of this post, after the text of the ruling. has received the 9th Circuit’s opinion in Perry v. Brown that Proposition 8, the 2008 voter-enacted ban on marriage equality in California, is unconstitutional. In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. The ruling on constitutionality was divided on an 2-1 vote, with Judges Stephen Reinhardt and Michael Hawkins voting to strike Prop 8 down, and Judge N. Randy Smith voting to uphold the ban. The ruling regarding standing and the motion to throw out Judge Walker’s decision was a unanimous 3-0 vote.

In his August 4, 2010, decision, which the 9th Circuit upheld today, District Court Judge Vaughn Walker struck down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th Amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact. Today’s ruling affirms Judge Walker’s findings of fact, meaning that they can but used in the future in other trial cases in the 9th Circuit that deal with LGBT rights.

Today’s ruling is also significant because the 9th Circuit ruled that District Court Judge James Ware, who took over the Perry case when Judge Walker retired, was correct in denying a motion filed by Prop 8’s proponents to overturn Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released). In a December 8 hearing on the motion to overturn Judge Walker’s decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker’s ruling should be thrown out because of his orientation and relationship status. The 9th Circuit’s decision today is an important victory for the assumption of impartiality that our judicial system is based on, and demonstrates that LGBT judges are just as fit to preside over cases pertaining to LGBT rights as are their heterosexual counterparts.

What comes next? The first issue on everyone’s minds is whether same-sex couples can wed immediately if Prop 8 is struck down. The answer is that it depends on whether a stay is issued in the case. After Judge Walker issued his decision, a stay on his ruling was also issued that kept Prop 8 in effect as a law until such time that another court struck it down, meaning California’s same-sex couples have not been able to wed since his ruling. If the 9th Circuit panel or another court body issues a stay, same-sex couples cannot wed. Many legal observers expect a stay if Prop 8 is struck down, however it’s not entirely certain.

The other issue on everyone’s mind is, what comes next in terms of appeals? The losing side could appeal the decision in one of two ways. First, they could request what is called an en banc hearing. In most appellate courts, this involves the decision by a panel of judges (in this case, the 3-judge panel reviewing the Perry v. Brown case) being reviewed by all the judges on the appeals court. In the 9th Circuit, however (by far the largest appellate court in the country), an en banc hearing involves 11 of the court’s judges. In order for this review to occur, a majority of all active judges in the 9th Circuit must vote to rehear it. Many legal observers believe it is unlikely the court would allow an en banc hearing. The losing party could then appeal the case to the U.S. Supreme Court. The Supreme Court has discretion over which cases it decides to hear, and hears arguments in only about 1% of all petitions filed for certiorari (judicial review) each term, so there is no guarantee it would take up an appeal of Perry. If four Supreme Court Justices agree to hear the case, the Supreme Court will review the case. You can find a full, detailed history of the Perry case, which has been following from the beginning, here.

Below, you can find the full ruling striking down Prop 8, authored by Judge Reinhardt, via Scribd.

[scribd id=80680002 key=key-1a6zsalo5sm1wpeed9ev mode=list]

UPDATE 1: From the ruling, p. 80, footnote 27:

“The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate.”

UPDATE 2: The National Center for Lesbian Rights’s senior attorney, Chris Stoll, shares his thoughts with us on the next steps of the trial:

The stay is still in effect.  Footnote 27 the opinion says that the previously issued stay remains in effect pending issuance of the mandate.  Mandate issues 7 days after the deadline for filing a petition for rehearing expires, or 7 days after petition for rehearing is denied, whichever is later.  I expect that the proponents will ask for a further stay from 9th Circuit, and if that is not granted, they will ask the Supreme Court.

It usually takes months for the en banc reconsideration to be completed. If a party asks for en banc review, the request is sent to all of the 20-something active judges on the court. Memos are often exchanged between the judges before a vote takes place on whether to take the case en banc. If they take it, names are drawn for the panel and a whole new series of briefs are usually filed, which takes a few more months. Then they hold oral argument and issue a decision. It is really almost like starting the whole appeal all over again.

The losing party has up to 90 days to ask the Supreme Court to take the case. It then usually takes a couple of months at least for the Supreme Court to decide whether to take a case. The party opposing Supreme Court review gets to file a brief saying why the Supreme Court should not take the case, and amicus briefs can be filed on both sides as well. Also, the Court does not do any business from the end of June to September. If all that briefing is not completed before the Court’s summer recess begins, then it will not even consider whether to take the case until it comes back in September.

UPDATE 3: The Courage Campaign sent out this email about the ruling:

Just now, the 9th Circuit Court of Appeals panel released their decision ruling that Prop 8 is UNCONSTITUTIONAL!

That means we are 2 for 2 in the courts. But we’re not done yet. Our opponents are certain to appeal today’s decision to the full 9th Circuit and/or the U.S. Supreme Court. This victory belongs to all of us and MUST be defended by all of us.

We need to raise $45,000 immediately to defend today’s decision even as the Supreme Court considers it. Can you make a tax-deductible contribution NOW so we can uphold today’s ruling?

Here’s what we’re up against, Jacob: Prop 8 campaign leaders and right-wing fringe organizations like the National Organization for Marriage and Focus on the Familywill stop at nothing to delegitimize this decision before it ever reaches the Supreme Court. In fact, they already have: they tried to get the courts to throw out Judge Walker’s decision just because he’s gay.

To prevent the right-wing from spouting the same lies that were debunked and destroyed in Judge Walker’s courtroom, we must translate today’s victory in court to victory in the hearts and minds of Americans. We would not be here without the bold leadership from Ted Olson, David Boies and the American Foundation for Equal Rights, but we have work to do ourselves.We can’t forget that the courts pay attention to public opinion. The more we continue to demonstrate that Americans support marriage equality, the more likely the courts are to rule in our favor.

That’s why we need to raise $45,000 to support our work moving the poll numbers. That’s why we collected nearly 140,000 signatures to televise the Prop 8 trial — a campaign cited in a dissenting opinion to the Supreme Court’s 5-4 decision against broadcast. That’s why we put Palm Springs’ Ed Watson and Derence Kernek on the cover of the Los Angeles Times, telling the world why their relationship over more than 40 years deserves to be recognized. That’s why we made our “Fidelity: Don’t Divorce Us!” video about California’s same-sex married couples the most-watched political video in California history. That’s why we launched — generating more than 4 million views and 150,000 comments as the #1 Google result for “Prop 8 trial” so undecided Americans find us.It’s why we’ve live-blogged the trial along with every hearing, brief and decision. And it’s why we need your support today.

Chip in to help meet our $45,000 goal to defend today’s decision across America as we take the next step towards the big stage — the U.S. Supreme Court.

Thank you for all you have done to make today’s victory possible. With your ongoing support, full equality will eventually be the law of the land.

Rick Jacobs

Chair and Founder, Courage Campaign Institute

UPDATE 4: Rick Jacobs, Chair and Founder of Courage Campaign, released this statement regarding the ruling:

Statement from Rick Jacobs, Chair and Founder of the
Courage Campaign, on the 9th Circuit Court of Appeals Decision

“This is the Day We’ve Been Waiting For”

Los Angeles — After three years of Prop 8 weaving its way through the federal and California court system, the 9th Circuit Court of Appeals panel upheld Judge Walker’s August 2010 ruling that Prop 8 is unconstitutional. Marriage equality proponents throughout the state, including Courage Campaign members who worked valiantly to overturn Prop 8, cheered the historic decision.

The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans,” said Rick Jacobs, chair and founder of the Courage Campaign, a progressive, grassroots online organization with more than 750,000 members around the country. “Having live-blogged every piece of this trial, especially in Judge Walker’s courtroom two years ago, it became patently clear that the fringe opponents of equality would never prevail. We owe a huge debt of gratitude to the dynamic duo of attorneys Ted Olson and David Boies and their colleagues at the American Foundation for Equal Rights (AFER) who took to heart that real people are hurt by Prop 8 and its evil cousins across the nation. The time for waiting has ended.”

The Courage Campaign has played a leading role in informing and organizing around the entire Prop 8 trial. The organization collected nearly 140,000 signatures in support of televising the trial — the first time the U.S. Supreme Court ever cited such an online effort in an opinion. Upon learning that the historic trial would not be televised, Jacobs live-blogged daily from the courthouse and documented every important motion and court ruling on Prop 8 Tour Tracker (, a project of the Courage Campaign Institute. Over the course of almost three years, the widely-read blog has logged in over four million views and 150,000 comments. It is also the #1 Google result for “Prop 8 trial.”

Courage Campaign’s Testimony: Equality on Trial project staged re-enactments of the trial, including many from the general public. It was designed to educate the public on what happened in the courtroom, more vital now since the tapes have been forever sealed from public view. Two video re-enactments were used as evidence in federal court by the legal team from AFER. The first video was staged with Academy Award-winner Marisa Tomei (playing Kristin Perry, the plaintiff in Perry v. Brown) and actor Josh Lucas.

When the California Supreme Court decided it would take six months to offer its advice to the 9th Circuit, thus adding nearly a year to the process, the Courage Campaign asked members to submit their stories on what the delay meant to them and their families. Three hundred stories came in, including one from Ed Watson and Derence Kernek in Palm Springs, a couple for over 40 years. Ed had Alzheimer’s and his health was quickly deteriorating. A video of their story prompted a front page Los Angeles Times story. Ironically, Ed died on the eve of the last Prop 8 hearing in the 9th Circuit.

The decision made by the 9th Circuit, to be honest, is a bittersweet one for me,” said Mr. Kernek, who still lives in Palm Springs. “I know that my partner of 41 years, Ed, would’ve been thrilled to have heard the news. He missed it by less than two months because he passed away in December. Even as he took his last dying breaths, Ed spoke of wanting to marry me. Even though he did not get his last wish, I am heartened to know that other gay couples who love each other will be able to take sacred vows and fully commit their lives to one another. And that makes it a glorious day for gay people in California.”

UPDATE 5: From the AP’s coverage of the decision:

The court crafted a narrow decision that applies only to California, even though the court has jurisdiction in nine western states. California is the only one of those states where the ability for gays to marry was granted then rescinded.

“Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question,” the court said. “We need not and do not answer the broader question in this case.”

UPDATE 6 (Adam): The money line from the ruling:

“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution].  We hold Proposition 8 to be unconstitutional on this ground.”

UPDATE  7: To those asking whether this ruling applied to just California or the entire 9th Circuit, the answer is California. The court narrowly tailored the ruling to the state of California in remarking that Prop 8 is unconstitutional. While there is still a possibility that the Supreme Court (if it takes the case) may strike down laws/constitutional amendments limiting marriage to opposite-sex couples, that did not happen here.

UPDATE 8: Jon Davidson, Legal Director at Lambda Legal, just sent in his reaction:

The opinion is wonderful. It goes right to the dark heart of Proposition 8 — the measure had no purpose other than withdraw from lesbians and gay men the right to designate their committed relationships as marriages in order to deprive us of a societal status that affords dignity to those relationships. That is simply not a government objective the federal Constitution allows. It also brilliantly explains why it matters so much. “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered it” and that’s what Prop 8 wrongly tried to take away.

UPDATE 9: At the AFER press conference, attorneys Ted Boutrous and Ted Olson spoke about their ideas of whether or not the U.S. Supreme Court will take the case.  Boutrous pointed out that the 9th Circuit’s decision today is deeply founded in previous Supreme Court rulings, particularly Romer v. Evans, and doesn’t raise any thorny issues that conflict with a decision from another circuit, the Supreme Court may be less inclined to take the case for those reasons.  On the other hand, Ted Olson argued that part of California’s constitution, the largest state in the country (representing around 1/8 of the total U.S. population), has now been struck down by two courts, so the Supreme Court may wish to weigh in on those grounds.  Both arguments are intriguing, and of course we won’t know anything until the case makes its way to the Supreme Court.

UPDATE 10: Also at today’s conference, attorney Ted Olson addressed the stay that is currently prohibiting Judge Walker’s now-upheld ruling from going into place.  According to today’s ruling, the previous stay placed on that ruling by the 9th Circuit in August 2010 is in effect until the appeals court’s mandate is final.  What this means is that the proponents of Prop 8 now have 14 days to ask for a rehearing by an en banc panel of the 9th Circuit.  If they do not, the stay will be lifted.  It is likely the proponents will ask for further appellate review, and ask for the 9th Circuit to place an extended stay on its decision pending that review.  If the 9th Circuit were to deny that stay, the proponents could then go to the Supreme Court to ask for a stay pending appeal.  The following guidelines for an en banc rehearing can be found after Judge Smith’s concurring and dissenting opinion in today’s ruling:

Purpose (Rehearing En Banc)

A party should seek en banc rehearing only if one or more of the following grounds exist:

  • Consideration by the full Court is necessary to secure or maintain uniformity of the Court’s decisions; or
  • The proceeding involves a question of exceptional importance; or
  • The opinion directly conflicts with an existing opinion by another court of appeals or the Supreme Court and substantially affects a rule of national application in which there is an overriding need for national uniformity.
UPDATE 11: Today, at 5 p.m., Courage Campaign’s Rick Jacobs, Chair and Founder, and Adam Bink, Director of Online Programs, will attend a community event at Los Angeles City Hall.  L.A. Mayor Antonio Villaraigosa will be in attendance, as well as AFER board members Rob Reiner and Dustin Lance Black and a broad range of community and advocacy organizations.  The event will take place at City Hall, on the 3rd floor of 200 N. Spring St.  More information can be found on AFER’s Facebook page.

UPDATE 12: NOM’s reaction, which was itself predictable:

“As sweeping and wrong-headed as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said Brian Brown, NOM’s president. “We have anticipated this outcome since the moment San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the US Supreme Court, where we have every confidence we will prevail.”

UPDATE 13 (Jacob): I got to listen in to AFER’s press call this afternoon about the 9th Circuit decision.  Here are some highlights:

  • Ted Olson spoke in a little more detail about the stay.  Essentially, in its decision today the 9th Circuit set it up so that the stay would expire when it issues a mandate affirming Judge Walker’s ruling.  The proponents of Prop 8 have 14 days from today to request further appellate hearings.  If they don’t, the mandate goes into effect 7 days later, and the stay is lifted (that would happen on Feb. 28).  If they do seek a rehearing or Supreme Court review, the mandate cannot be issued until that process is complete, and the stay would remain in place.
  • AFER’s attorneys were very clear that while the specific decision the 9th Circuit came to today is carefully crafted and applies only to California (following the principle of judicial restraint), the reasoning the judges use to make their decision is much broader and could have major repercussions.  In essence, today’s decision says that discriminating on the basis of sexual orientation is unconstitutional.  On p. 77 of the decision, Judge Reinhardt writes, “Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status.  Proposition 8 therefore violates the Equal Protection Clause.”  This kind of reasoning follows that made by AFER’s attorneys in trial, and as AFER President Chad Griffin points out, it could have ramifications in other states with marriage equality, such as New York (and possibly Washington, later this year), in which marriage opponents wish to seek to rescind previously enumerated marriage rights through a popular referendum or by changing the makeup of the legislature.
  • To further prove this point, attorney David Boies pointed to this quotation from p. 60: “There is no rational reason to think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.”  Again, because of the scope of today’s decision, that sentence technically only applies to California.  Nevertheless, that sentence (and its explicit rejection of the ‘responsible procreation’ argument made against marriage equality) can be cited and expanded upon by other courts in the future.
  • Ted Olson noted that when it decided Lawrence v. Texas, the Supreme Court (in a majority opinion authored by Justice Kennedy) argued that it was not making any decision about the validity of gay relationships, and only ruling about private sexual conduct.  In his dissenting opinion, Justice Scalia blasted the majority and argued that Lawrence could some day used in support of marriage equality.  He was correct, of course–the Perry decision cites Lawrence and Justice Scalia’s dissent specifically.  In Olson’s mind, today’s ruling demonstrates unequivocally that marriage is a centrally important American institution, and that it is unconstitutional to call gay couples’ relationships civil unions or domestic partnerships, because doing so implicitly classifies those relationships as less valid than heterosexual marriages.  In his mind, today’s decision lays the framework for further expansion of marriage rights in other courts.

UPDATE 14: Over on Twitter, “Modern Family” stars Jesse Tyler Ferguson and Eric Stonestreet ask a very good question.

UPDATE 15: GOP presidential candidate Mitt Romney released this statement regarding the 9th Circuit’s decision:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

UPDATE 16: When asked about the appellate ruling, White House Press Secretary Jay Carney had no official response from the administration, saying, “I don’t have a comment on litigation in general and in this litigation to which we are not a party.  Beyond that, I can say that the President has long opposed, as you know, divisive and discriminatory efforts to deny rights and benefits to same-sex couples.”

UDPATE 17: From the Wall Street Journal’s opinion pages, James Taranto writes:

The Ninth Circuit has a poor batting average in Supreme Court appeals, and this decision was written by Judge Stephen Reinhardt, who is notoriously liberal. Those facts are likely to inspire optimism among conservative commentators who oppose same-sex marriage. They shouldn’t. Reinhardt’s decision was expertly crafted to appeal to his former Ninth Circuit peer Justice Anthony Kennedy, whose view of the matter is all but certain to prove decisive.

In August 2010, this column ventured a prediction: “When the Supreme Court takes up Perry v. Schwarzenegger–perhaps under the name Brown v. Perry or Whitman v. Perry [it will be Perry v. Brown if today’s opinion is appealed]–the justices will rule 5-4, in a decision written by Justice Kennedy, that there is a constitutional right to same-sex marriage.”

Although we still think that is Justice Kennedy’s inclination, we hereby walk back our prediction a bit. The court will not find a constitutional right to same-sex marriage in this case, but it will strike down Proposition 8 and thereby reimpose same-sex marriage in California. Reinhard’s decision lays out a way in which Justice Kennedy can do so–and indeed makes it very difficult for Kennedy to uphold Proposition 8.

The trial judge in the Perry case held that same-sex marriage was itself protected by the U.S. Constitution. But the Ninth Circuit judges set aside this holding and decided the case on “narrow grounds.” They found that Proposition 8 was analogous to Amendment 2, a Colorado ballot measure that the Supreme Court struck down in Romer v. Evans (1996).

Amendment 2 barred state and local government in the Centennial State from official actions “designed to protect the status of persons based on their ‘homosexual, lesbian or bisexual orientation, conduct, practices or relationships.’ ” In a 6-3 ruling, the high court held that the amendment violated equal protection by “imposing a broad and undifferentiated disability on a single named group.” The author of that decision was Anthony Kennedy.

UPDATE 18: Towleroad’s Ari Ezra Waldman has a long, detailed reaction and analysis piece to the 9th Circuit’s ruling.  His fundamental argument, though, is crystal clear:

More than any single vote, more than any single veto, more than any single legislative majority, the Ninth Circuit’s decision in Perry v. Brown is the most significant advancement in the fight for marriage equality in American history to date. Consider this: Never before has a federal appellate court affirmed any of the conclusions that the Ninth Circuit did today:

  • that denying committed gay couples their right to marry cannot encourage opposite sex marriages;
  • that when a state denies the right to marry while allowing gay couples all the rights and privilges of marriage, it cannot base the marriage ban on any rationale that denigrates gay parents;
  • that domestic partnerships are unequal to marriage;
  • that, as a matter of law, marriage rights do not hinge on natural procreative ability;

and, of course,

  • that a ban on same-sex marriage unconstitutional.
UPDATE 19: Thank you all for following‘s coverage of today’s exciting and historic decision.  This thread will no longer update, but we will have more coverage of the decision tonight and in the coming days!

December 26, 2012

San Francisco asks Ninth Circuit for advance notice regarding Prop 8 decision mandate

By Jacob Combs

Yesterday, Therese Stewart, San Francisco’s Deputy City Attorney, wrote a letter to the Ninth Circuit asking for advance notice “if and when the mandate will be issued in the event the United States Supreme Court denies certiorari in the Perry case.”  This involves a bit of legal intricacy, but essentially the issue is this: if the Supreme Court decides not to hear the appeal of the Ninth Circuit’s decision of the Prop 8 case, the Ninth Circuit’s ruling becomes the final legal say on the matter.  But the circuit court’s ruling doesn’t go into effect the very instant the Supreme Court issues its order denying certiorari in the case; rather, the high court essentially returns the case to the Ninth Circuit for final dispensation in the case.  The circuit court must then issue what is called a ‘mandate,’ or a formal declaration that its decision should go into effect.  (The ruling is currently stayed ‘pending issuance of the mandate.’)

In Stewart’s letter, she outlines two reasons for the City’s request:

“As the Court is aware, this case has generated extremely wide interest.  In prior instances when decisions were issued in this and other cases relating to marriage for same-sex couples, there have been large gatherings, including protestors, in the Civic Center area of San Francisco…. To ensure the health and safety of San Francisco’s residents and visitors, the San Francisco Police Department would be grateful if the Court could provide advance notice of its intention to issue its mandate in this case so that the Department can plan for and deploy an adequate number of officers to the areas where protests are likely to occur.

“Equally important, if the Supreme Court denies certiorari and the Ninth Circuit and the Ninth Circuit issues the mandate, the City anticipates there will be immediate and substantial demand from same-sex couples for marriage licenses and ceremonies…. The logistical efforts the City undertook to accommodate the couples as promptly and seamlessly as possible were substantial.”

Naturally, if the Supreme Court does deny certiorari in the Prop 8 case next week, the first question for everybody will be when same-sex couples can wed again in California.  In the past, the Ninth Circuit has provided advance notice to the media and the public before issuing its decisions, so it looks like there’s a good chance it will grant Stewart’s request to ensure the end of Prop 8 goes smoothly.

Thanks as always to Kathleen for the full letter below, via Scribd.

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7 Comments November 28, 2012

Supreme timing, part 1: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial

This post is Part 1 of a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court.  You can read Part 2Part 3Part 4 and Part 5 at

By Jacob Combs

In a bout of incredibly serendipitous timing that nobody could have predicted, within the span of a week, both the First and Ninth Circuit Courts of Appeal have paved the way for the Massachusetts DOMA cases and the Prop 8 case to be heard at the U.S. Supreme Court.  As always, there are a few caveats to keep in mind.  First, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, which is defending DOMA on the wishes of House Republicans due to the Justice Department’s decision not to defend the law, could potentially ask that the 3-judge panel decision made by the First Circuit be granted a rehearing by what’s called an en banc panel made up of all the appellate court’s active judges.  This en banc rehearing would essentially be another intermediate step at the First Circuit before the case could move to the Supreme Court.  Such a move, however, would have a small chance of succeeding, given that the court is currently composed of five judges, making the 3-judge panel that struck down DOMA a clear majority to deny rehearing.  And, of course, the Supreme Court has discretion in which cases it wishes to hear, which means that the justices do not necessarily have to take up any given appeal.  (In fact, less than 1 percent of cases are taken up by the high court each year.)

When it comes to the DOMA cases, it is very unlikely the Supremes would not take up the appeals, given that a failure to do so would result in an act of Congress being declared unconstitutional and unenforceable in four states (and Puerto Rico!) while leaving it the law of the land in the other 46.  On the other hand, it seems quite feasible the Court would decline to hear the Prop 8 case, given the Ninth Circuit’s clear efforts to limit its decisions to California only and not address any larger federal questions.

With all of these complexities in mind, it’s worth revisiting a question about which much ink (both digital and otherwise) has been spilled: is it better for marriage equality if the DOMA cases reach the Supreme Court first, or if the Prop 8 case does?  Any answer to this question is necessarily rooted in the imprecise tea-leaves science of court-watching, but it is nevertheless a conversation worth having, especially considering the fact that the ground is now set for one or two high-profile marriage equality cases to make their way to the high court within the next year or so.  Writing yesterday in the Los Angeles Times, Douglas NeJaime of Loyola Law School argued, “Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.”  And at Towleroad, the ever-insightful Ari Ezra Waldman lays out the arguments for why DOMA should come before Prop 8.  (I have to credit the many commenters on Waldman’s post for giving me some of the ideas that led to this series.)

I firmly agree with the argument that the best possible outcome for marriage equality at the Supreme Court in the next year or so is for the Court to consider the DOMA cases, uphold the lower courts’ rulings striking down the law, and decline to hear the challenge to the Ninth Circuit’s Prop 8 decision.  This is not to say that this outcome is the one that I truly wish for; on the contrary, in my heart I want the Supreme Court to take up the Prop 8 case and choose to side with Judge Vaughn Walker’s powerful and persuasive arguments that marriage discrimination is simply unacceptable under the U.S. Constitution.

But while I am an optimist at heart, I am a realist as well, and while it is important for all activists to be impatient, and to push the envelope, and to refuse to settle for less than everything they know is right and true, I think the most realistic scenario is almost as good for us as my imagined one.  There are three reasons for this: 1) the different resonances that the DOMA case might have with the Court as opposed to the Prop 8 case, given the Supremes’ ideological makeup, 2) the distinct constitutional implications that striking down DOMA would have compared to striking down Prop 8 and 3) the wide-reaching and perhaps hitherto under-appreciated effect that a DOMA win would have for marriage equality, including in a post-Prop 8 California.

Starting tomorrow, I will explore one of these arguments in detail each day, and on Friday I will wrap up the series with a conclusion about the importance of the timing of the two cases.  This entire series is meant to delve more deeply into the issues than a one-time post would allow and, I hope, will inspire a vigorous debate around the issue of timing.  While these pieces represent my own opinion and my reasoning for holding that opinion, I hope that those who feel differently (or perhaps see flaws in the arguments I make) contribute to the discussion in the comments.  As I said earlier in this introduction, predicting the actions of the Supreme Court is at best an art and not a science, but it is still an important exercise for our community, since it helps us look at the reality of the legal landscape in which we live rather than the one in which we might wish to live.  The recent decisions of the First and Ninth Circuits mean we are living in an exciting time where matters of great importance are to be decided.  It helps if we go into them knowing where we stand.

Tomorrow, in Part 2 of this series, I’ll explore the different reception that the DOMA cases might have at the Supreme Court as opposed to the Prop 8 case, given the political and ideological makeup of the current nine justices.

25 Comments June 11, 2012

BREAKING: 9th Circuit DENIES request to re-hear Prop 8 case

By Scottie Thomaston

The judges sitting in the Ninth Circuit have issued a new order in the Perry v. Brown case today. The full panel of Ninth Circuit judges have decided that en banc rehearing of the three-judge panel’s decision will not be granted. This comes after a months-long wait: the proponents of Proposition 8 announced their intention to seek en banc review of the Ninth Circuit’s three-judge panel decision on February 21 of this year. As we noted yesterday, the decision to deny rehearing of the case with a new, randomly-selected eleven judge panel means that Judge Reinhardt’s opinion, which was joined by Judge Michael Daly Hawkins and garnered a dissent by Judge N. Randy Smith, either way, will likely be appealed to the Supreme Court where the proponents will now likely file a petition for certiorari, asking them to review and possibly overturn Judge Reinhardt’s opinion for the Ninth Circuit’s panel of three judges.

An en banc rehearing at the Ninth Circuit Court of Appeals is much different from other circuits. Generally, en banc means that the entire court will rehear the case, with all judges in the circuit participating. But the Ninth Circuit has an inordinately large number of judges, so they have a procedure wherein they have an ‘en banc panel’ consisting of eleven judges: ten randomly-chosen judges plus the Chief Judge (at the Ninth Circuit that is Alex Kozinski) presiding. If rehearing had been granted, the randomly selected panel could have heard arguments and issued new briefing in the case or they could have decided to forgo that and issue a new decision without it.

Now that en banc rehearing was denied, the proponents have 90 days to file a petition for certiorari to the Supreme Court, seeking review of the decision striking down Proposition 8. It’s likely that Justices at the Supreme Court would have their conference to take up the petition and decide whether to grant review or not sometime after their summer break in October. Oral argument would follow a few months later, and then a final decision would be issued by June or July 2013.

Judge O’Scannlain has filed a dissent from the denial of en banc rehearing joined by Judges Bybee and Bea, and in it he discusses his belief that Judge Smith’s dissent was correct. He says that “we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia.”

No one is certain if the Supreme Court would grant review of the case as it currently stands. Judge Reinhardt’s opinion for the three-judge Ninth Circuit panel is very narrow and the holding is specific to California’s unique legal circumstances. A denial of rehearing in this case leaves the decision California-specific and there may not be four Justices – the number needed to grant certiorari – who want to visit an issue that’s so limited in scope. On the other hand, the panel’s decision did strike down an amendment to a constitution of an enormous state involving a contentious issue. And allowing gay couples to marry in California would nearly double the amount of people in the United States who live in an area that allows same-sex marriage.

This process has gone on for so long. The complaint was initially filed on May 22, 2009 and the trial began on January 11, 2010. Judge Walker didn’t issue a decision in the case until August 4, 2010. The Ninth Circuit’s ruling came much later, with the three-judge panel issuing its ruling on February 7 of this year. Now the Perry case is entering its final phase.

Now that the Ninth Circuit has denied en banc rehearing of the three-judge panel’s decision, the case will face its final test soon, at the Supreme Court, as the proponents are widely expected to seek review of the three-judge panel’s decision. If the proponents do file a petition for certiorari the Justices will look at the petition in a conference later this year where the final decision will be made: review the case or let the Ninth Circuit’s decision be the final word in this long journey to decide the fate of the odious Proposition 8. It promises to be an exciting year.

UPDATE 1 (Jacob): Thanks to the inimitable Kathleen, here is the full order from the Ninth Circuit (via Scribd):

UPDATE 2 (Jacob): Some more details.  The original three-judge panel voted 2-1, along the same lines as the decision, to deny en banc rehearing, with Judges Reinhardt and Hawkins voted to deny it and Judge Smith voting in favor of it.

As expected, Judge O’Scannlain (who has written in favor of en banc rehearing on LGBT cases before and has excoriated the Ninth Circuit for its rulings favorable to gays and lesbians), wrote a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing.  Here is his brief dissent, in full:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same- sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”1

Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

Judges Reinhardt and Hawkins also filed a response to Judge O’Scannlain’s dissent today, concurring in the denial of rehearing:

We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion.  We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.  In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

UPDATE 3 (Jacob): I’ve updated our ‘where things stand’ page, which is the place to go for an overview of recent developments on the Prop 8 case and information about next steps.  Here’s the pertinent section about what comes next, possible Supreme Court review, and how and when the stay on the decision will operate, as some have asked about in the comments:

Where things are at today: Because the Ninth Circuit has chosen not to rehear Judge Walker’s ruling en banc, the 3-judge panels decision striking down Proposition 8 is now the appellate court’s last say on the matter.  The proponents of Proposition 8 now have 90 days to file hat is called a petition for a ‘writ of certiorari’ with the U.S. Supreme Court, which they have publicly stated they plan to do.  The Supreme Court will then have discretion to choose whether or not it wants to hear the Prop 8 case, and may ask for additional briefings before issuing its decision (this is sometimes known as “denying cert” or “granting cert”).  Because the Court takes a summer recess that starts in late June, it is unlikely any decision on whether the Court had chosen to take up the case would not happen until sometime into its fall term, which begins in October.  If the case were reheard, a decision would likely be handed down by June 2013.  In the exceedingly unlikely event that the proponents of Prop 8 do not choose to file a petition for certiorari, then marriage equality will be restored to California at the end of the 90-day period.  If they do file a petition with the Supreme Court, the Ninth Circuit has issued a stay on its decision until Supreme Court review is complete.  That means marriages couldn’t begin until the Supreme Court has officially denied cert or when it hands down its final decision, should it choose to rehear the case.

238 Comments June 5, 2012

En banc rehearings: What they mean for marriage equality in the Ninth Circuit and the First Circuit

By Jacob Combs

Today, of course, we’re all looking forward to the Ninth Circuit’s ruling (which we expect to be released on the court’s website around 10:00 a.m. Pacific) regarding whether or not the Prop 8 case will be reheard en banc by an 11-judge panel of the appeals court.  Because of this focus on appellate court process today, I thought I’d take a little time to go into more detail about what the en banc process entails and what it could mean for another important marriage equality case that made news last week: the striking down of DOMA by the First Circuit Court of Appeals.

Veteran readers of and followers of the Prop 8 trial might easily think, “wait, hasn’t the Ninth Circuit already ruled on the constitutionality of Prop 8?”  The answer is yes, the Ninth Circuit did issue a ruling this February that uphold the lower court’s decision that Prop 8 is unconstitutional, but that wasn’t the last stop for the case even within the Ninth Circuit itself.

In the simplest and broadest sense, there are three levels that make up the federal courts in the United States.  The first and lowest level is made up of the district courts, which are apportioned by state.  In California, which is the largest state in the union, there are several district courts.  Judge Vaughn Walker heard the Prop 8 case in its first form in the Northern District Court of California.  While district courts only have the first say on any given issue, they are extremely important, because they are the only levels where witnesses are brought into court to testify, as several did during the Prop 8 trial.  The highest court in the United States is, of course, the Supreme Court, which has the final say on any case it takes up.  The Supreme Court takes cases by discretion; that is, they choose what to hear and what not to hear.

In between lie the appellate courts, and it’s there that things get a little bit complicated.  The country is divided up into 13 Courts of Appeal, with California falling under the Ninth Circuit, which is the largest in the U.S.  Any case that has been decided by a trial court has an automatic right to appeal, although, as we all know, these appeals often take a lot of time.

Smaller appellate courts often have a handful of judges on staff, like the First Circuit, which has five active judges.  The Ninth Circuit, on the other end of the spectrum, has 29 active judgeships.  Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court and either uphold it or reverse it.  Sometimes, the appeals courts remand the case, sending it back to the district court.  This first 3-judge step is the guaranteed appeal that all cases are entitled to.

After a 3-judge panel has ruled, the lower side can either appeal to the U.S. Supreme Court, or they can choose to seek an en banc rehearing, in which all of the active judges in a specific circuit rehear the appeal.  The earlier 3-judge panel ruling is vacated, and the case is considered anew.  These en banc appeals are not guaranteed, and are rarely granted, due to the inherent complexity of having a large number of judges hear a case together in one location.

Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them.  Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court.  For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted.  Nevertheless, today’s announcement will tell us whether a new 11-judge panel will rehear the merits of Judge Walker’s district court decision (essentially making it as though the earlier 3-judge decision never occured), or whether that earlier decision stands and we move straight on to the Supreme Court, which could easily decline to hear the case.

What does all this mean, then, for the DOMA ruling recently handed down by the First Circuit?  Because that ruling was unanimous and signed by all three judges, it is in essence en banc-proof, since there are only five judges total in the circuit.  (Technically, the First Circuit is a 6-person court, but there is currently one vacant seat.)  This means that it is highly unlikely a majority would vote to rehear the case.

Intriguingly, though, an eventual First Circuit decision on the DOMA case could end up being heard by only eight judges, since there is a chance that Justice Elena Kagan could recuse herself given her likely past involvement as Solicitor General in deciding the Justice Department’s position towards previous DOMA cases.  In the event of a 4-4 split on the Supreme Court, the First Circuit ruling would stand, meaning that DOMA would be unconstitutional, but not by virtue of a sweeping majority decision by the Supreme Court decision saying so.  Technically, the decision would be limited to the First Circuit only, although such a ruling would have an effect on DOMA cases in the other circuits as well.

With DOMA certainly on its way to the Supreme Court, we will find out later today whether Prop 8 will join it very soon.  On the other hand, we could be looking at a good deal more waiting time in the Ninth Circuit before Prop 8 makes its way onto the Supremes’ desks

43 Comments June 5, 2012

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