Slugfest on Gay Marriage (and Standing) at 9th Circuit

Commentary by Nan Hunter

The long-awaited oral argument in Perry v. Schwarzenegger just concluded before the Ninth Circuit, and we all now enter what I expect will become an even longer awaited decision.  Who won? To my hearing (via radio), it's hard to imagine that any judge's inclination on the merits of whether Prop 8 is constitutional was altered by the arguments they heard. The argument may have had a bigger impact on how the court will rule (or defer ruling) on standing than on their view of the merits.

Judges Reinhardt, Hawkins and Smith peppered both sides with sharp questions, and both sides acquitted themselves well. With a caveat that I'm writing without time for reflection, here are the main points that the argument brought to light:
On the standing point, the plaintiffs' lawyers acknowledged that Judge Walker's injunction would apply to only the two county clerks named as defendants, leaving all other county clerks free to deny marriage licenses to same-sex couples. The judges seemed surprised to hear this and skeptical about the plaintiffs' further point that Judge Walker's injunction would be enforced by the governor and attorney general going into state court to get a further enforcement order. These details came out in the initial hour as the judges wrestled with whether the proponents have standing. (They also suggest another way that the outcome of the election could have altered the status of marriage rights in CA - even if the injunction went into effect, it could have been torpedoed by a governor and attorney general opposed to same-sex marriage.)

Most significantly on the standing point, Judge Reinhardt strongly suggested that he was inclined to certify a question to the California Supreme Court to help resolve the standing question. That means that the Ninth Circuit will suspend its consideration of the issues until the California Supreme Court answers the question of whether, under state law, the proponents of a ballot initiative would have standing to defend Prop 8 in a context in which the state officials decline to defend it. If I had to bet on what the next stage in this saga would be, I would bet that this part of the case will be referred to the state supreme court. (This is not an unusual procedure when a federal court has to resolve the meaning of a state law in order to get to the federal question in the case.)

On the merits, the most important exchanges related to whether the court could determine the constitutionality of only Prop 8, that is, without reaching the question of whether bars to same-sex marriage in other states would be unconstitutional. Asked that direct question of whether the court could avoid ruling as to other states, Ted Olson said yes, although he added that the decision he wanted would be on broader grounds. If I had to bet on the merits, my money would be on a decision that applies only to California.

In questioning Charles Cooper, who represented the Prop 8 proponents, Judges Reinhardt and Hawkins both alluded to the equal protection standard used by Justice O'Connor in her concurrence in Lawrence: a rational basis with bite standard, that subjects laws to more searching scrutiny when there are indications that they were motivated by bias. If the panel ultimately adopts that standard, it would be the first appellate court to follow O'Connor's suggestion, but I think many others could follow.

Nan Hunter is the Legal Scholarship Director of the Williams Institute. She can be reached at her blog Hunter of Justice

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