News for the Week Ended December 8, 2010

News for the Week Ended December 8, 2010
BY ANN ROSTOW


Prop 8 Case Rolls On

Oral arguments are always hard to analyze. Judges routinely play devil’s advocate. And they go well out of their way to avoid stating a specific opinion on key aspects of a case. The lawyers, in turn, rehash the same arguments articulated in their briefs. And even if one of them turns in a nervous performance, that lapse doesn’t mean the court will toss their written arguments to the wind as punishment for poor public speaking.

That said, there’s always something to be gleaned from the event, and Monday’s three-hour debate on the Prop 8 case before the U.S. Court of Appeals for the Ninth Circuit in San Francisco was no exception.

At issue were three main questions. Do the proponents of Prop 8 have the right to appeal the lower court opinion under federal law? Does the deputy clerk of Imperial County (who was not sued in this case) have standing to appeal Judge Walker’s decision? And finally, is Prop 8 unconstitutional?

Happily, I think we can conclude that the answer to question two is “no.” The unfortunate lawyer representing Imperial County was ripped to shreds by the dismissive three-judge panel, turning his fifteen minutes of fame into a forgettable sideshow. It’s not at all clear that the County Clerk would have standing to intervene in this case to begin with. As for the deputy clerk, her duty is ministerial and she is not personally harmed, or even affected, by the outcome of the Prop 8 case in any way. Perhaps she opposes same-sex marriage. So do millions of other citizens who also have no legal role in the litigation.

As for question one, the legal facts suggest that the backers of Prop 8 have no more right to appeal than the butcher the baker or the candlestick maker. Marriage opponents have been allowed to defend Prop 8 in certain state court battles, and they were allowed to intervene in the lower court case in federal court as well. But that does not mean that they have ever been granted standing under the federal constitution.

Further, the U.S. Supreme Court has stated directly that initiative proponents do not meet the federal test for standing under Article III of the Constitution, so it would seem as if the battle for Prop 8 in the higher courts should be over.

But there are two reasons why this obvious conclusion might be premature. Lame ones, in my view. But still.

First, what if the proponents are allowed standing under California law? Would such a conclusion have an impact on their status as appellants in the federal courts? The Ninth Circuit panel hinted that it might be interesting to ask California’s high court for an interpretation of state law before making a determination on federal standing, an irritating notion that would send the case through a lengthy technical detour en route to the decision we are all awaiting with drooling tongues.

The delay would be triply annoying. For one thing, it seems clear that California law does not grant standing to proposition initiators. For another, it seems irrelevant since, as David Boies pointed out to the judges, the question here is a matter of federal law, not state law. And finally, the Ninth Circuit has expedited this case in every way, fast-forwarding through its usual timetables to bring Prop 8 to oral arguments in record time. Why hit the pause button by raising a possibly irrelevant point of state law at this point?

The second reason that the standing issue might have legs was reflected in the panel’s dismay over the idea of letting the underlying question remain unanswered on procedural grounds.

If you accept the core principle that California voters have the ultimate power to change their constitution (in line with federal law), the panel wondered, then how can you allow the governor and the attorney general to thwart that power simply be refusing to defend a constitutional amendment in court? If standing is only granted to these state officials, aren’t you giving them a de facto veto over the people’s decisions?

(One answer to that would be yes, but only in cases where the proposition was challenged in court and the aforementioned state officials believe the people’s decision is constitutionally indefensible. Surely not a common scenario.)

There was also a general sense that an issue of such magnitude, marriage equality, should be reviewed on its merits through the federal court system rather than return to the books thanks to the fine print of Article III.

Indeed, even if Prop 8 is struck on procedural grounds, there’s no doubt that the core question of marriage equality will wind up in the federal courts down the road. It just won’t be this federal court. If I were an appellate judge, I’d be looking for a way to get my teeth on the meat of the case rather than hand this historic legal issue over to someone else.

And this brings us to question three.

Most analysts believe the panel will do one of two things; deny standing and say nothing on the merits, or alternatively, award standing and rule on the merits. But it’s within their authority as well to issue some vague comment on standing and go ahead and rule on the merits. Or, they could even deny standing but rule on the merits anyway, just in case their standing decision is overturned. I just can’t imagine that they’ll let this juicy rare steak sit on the plate without taking a bite or two.

So did the oral arguments give us any hint as to how the panel will rule on the constitutionality of Prop 8?

In fact, the give and take indicated that all three judges would have a difficult time ruling for Prop 8. And that is not surprising.

Prop 8 is often described as a measure that “banned gay marriage,” but in fact it really should be described as a measure that “required the state to stop applying the word marriage to same-sex couples.”

The word is the only thing at issue here, and as such the case is both extremely simple and extremely complex.

No one is debating whether or not gay couples should have parental rights, the right to visit a dying partner in the hospital, or the right to spousal benefits. The one and only question is whether this one particular vocabulary word shall be used to describe committed gay couples.

But when asked essentially whether this was all a semantic argument, Prop 8 lawyer Charles Cooper told Judge Smith (the alleged conservative on the panel) that the word marriage is the institution of marriage. The two things are indivisible. Our side agrees with this premise, which is why we’re fighting so hard for the word itself to begin with.

Judge Smith then wondered whether California has legislated itself into a corner by offering gay couples everything under the sun short of the word itself. What is the legally acceptable rationale for maintaining a bifurcated system based on a word?

The implication, of course, is that a state that limits all or many of the rights of marriage to straight couples would have an easier time defending its policies. Such a state could explain that marriage is a special institution with all sorts of special advantages reserved for those who procreate without third party assistance, blah blah blah. These excuses are paltry to begin with. But when you’re trying to justify the denial of a single word on such grounds, they become even weaker, a point that Judge Smith seemed to recognize.

Speaking to Ted Olson, Judge Smith also asked whether or not the state’s desire to maximize the chances that a child would grow up with his or her biological parents in a stable home would be enough of a rational basis to maintain California’s split terminology. Olson said no of course, adding that the denial of the word marriage to gay couples would have no impact on the behavior of straight parents. Left unsaid here was the fact that the state’s gay citizens would continue to suffer immense harm by being relegated to a second-class status, a harm that could not possibly be mitigated by such a tenuous state interest.

If that was the best explanation Judge Smith could summon on behalf of the proposition, it’s hard to believe that even the “conservative” on the panel would vote in favor of Prop 8.

We could rehash the arguments all day long, but the last major point is this one. If we assume that the panel will somehow rule on the merits, and if we also assume that the panel will rule in our favor, how broadly will they rule?

Appellate courts are generally supposed to rule on the most narrow grounds available. In our case, I’d bet good money that a ruling in our favor on the merits would be limited to the situation in California, where marriage equality was first granted by the state supreme court and then taken away by the voters.

By ruling on these grounds, the panel would be less likely to be reversed on appeal, and the impact would be limited to the Golden State. Plus, the question under review is not “are restrictions on marriage unconstitutional.” The question is whether “Prop 8” is unconstitutional. The panel doesn’t have to go any further than that. And a panel that supports marriage equality to begin with would logically want to avoid a blockbuster opinion that could easily go down in flames at a higher court.

Now we wait again. Since the case was originally supposed to be scheduled for a fast run through the courts, it would make sense that the panel would announce their decision relatively soon. Maybe in a month or two or three, depending on whether they decide to ask the California Supreme Court for advice, or whether they want to deny standing and say nothing on the underlying question.

Whatever they do, one assumes that the next court of review will be the full court of the Ninth Circuit, a group of maybe a dozen or so judges with its own time-consuming agenda or written briefs, responses, and oral arguments.
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What’s Reid Up To?

In other major news this week, Harry Reid has indicated that he will try to call a vote on the Defense budget late Wednesday, assuming the Senate conducts the other business of the day in a timely fashion. As you know, the Defense budget includes the amendment that repeals Don’t Ask Don’t Tell, although the military ban would not end immediately.

The problem is that a quick vote on Wednesday will probably fail to garner 60 votes and thus effectively kill the repeal effort. Activists are perplexed, that’s a nice word for it, by Reid’s decision, accusing him of undermining the entire effort. Several key Republicans have reportedly agreed to vote for repeal on condition that something like twenty other amendments be raised on the floor, and by implication, that days be devoted to debate. These senators will likely withdraw their support if Don’t Ask is dumped on their plates prematurely.

It’s very possible that the other business will take up the time, and I suppose Reid might be convinced to wait by outraged gay lobbyists. Still, it’s weird that he considered the idea to begin with, and if Don’t Ask is brought up this afternoon and defeated, our community will have reason to howl.

Maybe Reid has a trick up his sleeve. Who knows? At any rate, it’s back to C-Span for me, and you already must know what happened on Wednesday since you readers live in the future.
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Cyber Wedding Not OK

I guess I will steal a little extra space to write about the two men in Texas who got married over Skype, where a minister or someone was calling from Washington DC. Subsequently, a DC court ruled that the marriage was void, because the guys were not physically present in the District, and they had the local person fill out all the forms on their behalf.

The guys insist that the city is discriminating, and I must say that while I support anyone fighting for marriage rights, this seems ridiculous. Just get on a plane, get married, and have a formal wedding in Texas after the correct paperwork is done. It’s not as if heterosexual couples can get married in Washington through a video conference, so let’s save our outcries for real discrimination rather than inconvenience. And when all is said and done, it’s not Washington DC that deserves condemnation, it’s Texas.
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