Appellate Court Looks To State for Guidance on California Gay Marriage Ban
Jan 6, 2011
By Kristen Friend, staff U.S. Supreme Court and Congress writer – January 6, 2011
A federal appeals court considering the fate of Proposition 8, California’s controversial ban on same-sex marriage, threw the case to the State Supreme Court on Tuesday, asking for guidance on a legal technicality before ruling.
The Ninth U.S. Circuit Court of Appeals heard arguments regarding the constitutionality of California’s gay marriage ban in early December. With Tuesday’s order, the three-judge panel declined to rule on the merits of the case, instead asking for legal advice about whether Proposition 8 supporters have the right, or legal standing, to defend the ban in federal court.
Proposition 8 was passed by California voters in 2008. The ballot initiative modifies California’s constitution to declare only marriages between one man and one woman to be valid. In 2009, conservative attorney Theodore B. Olson and democratic trial lawyer David Boies, who were opposing counsel in Bush v. Gore, filed suit challenging the constitutionality of Proposition 8 on behalf of two California couples.
Since its inception, the case has been the subject of much speculation, about the future of gay marriage in the United States, and is widely expected to be the first case questioning the constitutionality of same-sex marriage bans to reach the U.S. Supreme Court.
Gay marriage proponents won a victory in August of 2010 when U.S. District Court Judge Vaughn R. Walker issued a decision declaring Proposition 8 unconstitutional. Judge Walker agreed that California’s gay marriage ban violated the 14th amendment, which guarantees all citizens equal protection under the law. Preventing same-sex couples from marrying, according to the ruling, denies them equal protection. 
Arnold Schwarzenegger was named as the defendant in the case, as the sitting governor and de facto representative of California’s position defending its own laws. Schwarzenegger, however, accepted Judge Walker’s decision and both he and then Attorney General Jerry Brown declined to appeal the case.
Since the state refused to file an appeal on behalf of Proposition 8, private groups responsible for getting the initiative on the ballot, led by the organization Protect Marriage, stepped up to defend the law. The groups argued that since citizens voted to pass Proposition 8, it was the will of the people to outlaw gay marriage, and the people have the right to appeal. Alliance Defense Fund Litigation Counsel Jim Campbell said of the issue, “The people of California have the right to be defended, and thus the official proponents of Proposition 8 must have standing to defend that law. Otherwise, the governor and attorney general will succeed in indirectly invalidating a measure that they had no power to strike down directly.” 
The decision of both then Governor Schwarzenegger and former Attorney General Brown not to challenge Judge Walker’s ruling is the key factor in the appellate court’s request for further guidance. Attorneys Olson and Boise argued that the federal court could not rule on the constitutionality of Proposition 8 since the state had declined to defend the law. Private citizens, they claimed, do not have standing to appeal in the absence of action from state officials. 
Citing a lack of “controlling state precedent,” about whether a governor can “effectively veto” the law by refusing to appeal, the Ninth Circuit Court avoided making a decision on either the issue of legal standing or the constitutionality of the gay marriage ban before hearing from the state Supreme Court. The panel unanimously decided that, “It is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional.” 
While the federal appeals panel declined to determine the legal standing of private groups, it did rule in a separate order that Imperial County officials could not step in and defend the case in place of the state, denying a request by the Imperial County Deputy Clerk. In addition, Judge Stephen Reinhardt issued an order dismissing a request that he recuse himself from the case. In the order, Judge Reinhardt argued that his wife’s involvement with the American Civil Liberties Union had no bearing on his ability to impartially hear the case on its merits.
California’s Supreme Court has ruled two cases involving gay marriage since 2008. In May of 2008, the Court invalidated a state law banning same-sex marriage. Californians responded by passing Proposition 8, and in 2009 the Court upheld the initiative, ruling that citizens had the right to reverse the Court’s decision.
Since those rulings, Chief Justice Ronald M. George, who wrote both opinions, has stepped down and been replaced by Judge Tani Cantil-Sakauye. Judge Cantil-Sakauye has refused to disclose any of her views concerning the legality of gay marriage.
Those on both sides of the issue are in disagreement as to what would happen to California’s gay marriage ban if the state Supreme Court determines supporters lack standing, although were that the case it would appear to be on very shaky legal ground. Attorneys for the opposition say that the Ninth Circuit Court will have to dismiss the appeal, legalizing gay marriage in California and the five other states under the federal court’s jurisdiction. Proponents of the ban argue that if they do not have standing, the appeals court will have to vacate the lower court’s decision, leaving the gay marriage ban in place. 
The Ninth Circuit Court judges found it critical to seek input from the state, but they also appeared skeptical of the claim that the groups filing the appeal lacked standing. In the order, the judges stated that California’s ballot initiative process “would appear to be ill-served” if laws were overturned simply because state officials failed to defend them. In a concurring opinion, Ninth Circuit Judge Reinhardt indicated that the appeals court would most likely be able to rule on the constitutionality of Proposition 8. Reinhardt wrote that the private groups “have a strong argument” favoring legal standing.  The California Supreme Court may agree, finding the prospect of overturning an initiative passed by the majority of the state’s residents due to a legal technicality insupportable.
Regardless of the state’s stance on the issue, the appellate court’s order adds more delays to the proceedings that will ultimately determine the fate of Proposition 8 and potentially the constitutionality of gay marriage bans across the country. The California Supreme Court is unlikely to issue a statement for several months, and some analysts expect the question of standing to reach the Supreme Court before any court has the opportunity to rule on the actual merits of the case.
For a more thorough discussion of Perry v. Schwarzenegger and the involvement of the Supreme Court in gay rights issues, see our article, “Will Gay Marriage Advocates Get Support from the U.S. Supreme Court?.”