An attorney for same-sex couples hoping to overturn Proposition 8 in federal court urged the California Supreme Court on Tuesday to reject a federal appeals court request to determine whether state law gives initiative sponsors legal authority to defend ballot measures.

The U.S. 9th Circuit Court of Appeals asked the state high court earlier this month whether California law gives initiative proponents the right to defend a ballot measure when state officials refuse to do so.

In federal court, the general rule is that only a party that is directly affected by a trial court ruling  has standing or authority to appeal it. State officials have refused to appeal the August ruling against Proposition 8.

In his letter to the state court, Theodore B. Olson, an attorney for two same-sex couples, said the question of standing in federal court is a federal constitutional issue, not a state one, and that the California Supreme Court would merely prolong the case by agreeing to answer the 9th Circuit’s question.

A federal appeals court on Tuesday rejected Imperial County's challenge to a judge's ruling that California voters' ban on same-sex marriage is unconstitutional.

DOCUMENTS: Read the court's opinion and other filings

However, the ruling by a three-judge panel of the U.S. 9th Circuit Court of Appeals sought guidance from the California Supreme Court as to whether Proposition 8 supporters have the right to appeal the Aug. 4 ruling that the voter initiative illegally deprives gay couples of their constitutional right to equal protection.

Proposition 8 supporters have petitioned the court for the right to appeal in the place of state officials who declined to challenge U.S. District Judge Vaughn Walker's landmark ruling five months ago.

Imperial County's Board of Supervisors and deputy clerk had filed a motion to intervene on behalf of the Proposition 8 proponents as well, arguing that county officials had a vested interest in the issue of whether the law passed by a 52% majority of voters in 2008 should be enforced. The appeals court said marriage laws are a state, not a county, matter.

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Gay marriage opponents' right to defend ban may be decided by California Supreme Court

-- Carol J. Williams

The U.S. 9th Circuit Court of Appeals has asked the California Supreme Court to rule on whether the groups that put California’s ban on gay marriages onto the ballot have the legal right to defend the ban in court.

DOCUMENTS: Read the court's opinion and other filings

A federal judge has previously ruled that the ban violates the U.S. Constitution. Because Gov. Jerry Brown, former Gov. Arnold Schwarzenegger and the state’s new Atty. Gen. Kamala Harris each have refused to defend the marriage ban in court, the groups which put Proposition 8 on the ballot are seeking to defend it on appeal. The question of whether they have the legal right to do so is key to whether the ban will remain in force.

That question will now go to the California Supreme Court, which will advise the federal judges about whether, under California law, the official supporters of a ballot initiative have the right to defend it in court if the governor and attorney general decline to do so.

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Prop. 8 analysis: Judges took different approaches on issues

Liberal, moderate, conservative judges will decide fate of Prop. 8

-- David Lauter

A federal appeals court on Monday heard arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Courtney G. Joslin, acting professor of law at the UC Davis School of Law, says judges on the three-member panel of  9th Circuit Court of Appeals appeared to take different approaches on some issues. Here’s the analysis she provided The Times:

At different points in the hearing, Judge N. Randy Smith suggested that he thought that the particular circumstances of the case make the proponents' task of defending Prop. 8 a particularly difficult one. Specifically, Judge Smith pointed out that even after Prop. 8 was approved by the voters, California law still extended to lesbian and gay couples all of the state-conferred rights and obligations of marriage, including all of the parentage and child-related protections. That being the case, he suggested, it is difficult to see how Prop. 8 rationally furthers any interests related to the protection and well-being of children. Later in the hearing, Judge Smith suggested that same-sex marriage bans in states that, unlike the state of California, do not encourage and facilitate same-sex parent families might be more likely to survive constitutional review.

Judge Michael Hawkins went down a different path. Judge Hawkins pressed Charles Cooper, counsel for the Prop. 8 proponents, on the applicability of Romer vs. Evans, a U.S. Supreme Court opinion striking down a Colorado voter initiative provision under rational basis review. The initiative at issue in Romer prevented the state or any governmental entity from prohibiting discrimination against lesbian, gay or bisexual people. The Colorado initiative “withdr[e]w] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forb[ade] reinstatement of these laws and policies.” This, the court said, was impermissible. Amendment 2, the court explained, “impos[ed] a broad and undifferentiated disability on a single named group” and “its sheer breadth [wa]s so discontinuous with the reasons offered for it that the amendment seem[ed] inexplicable by anything but animus towards the class that it affect[ed],” and thus failed rational basis review. Why, Hawkins asked, aren’t the merits of this case controlled by Romer?

FULL COVERAGE:

Appeals-court hearing adjourns; debate centered on whether gay-marriage ban violated Constitution

Does Prop. 8 violate equal-protections clause?

Is gay-marriage ban a violation of the right to marry or a denial of equal protection for gays?

In a spirited discussion that spanned over two hours before adjourning, backers and opponents of California's ban on gay marriage argued Monday over whether Prop. 8 violated the Constitution and whether gay-marriage foes had legal standing to make their case.

The hearing before the 9th Circuit Court of Appeals in San Francisco came after a federal judge ruled Prop. 8 -- the 2008 ballot measure that effectively banned same-sex marriage -- was unconstitutional.

The  judges dug into the issue of whether the Constitution permits the state to make distinctions between same-sex and opposite-sex marriages.

Charles Cooper, a lawyer who argued in favor of Prop. 8, said  marriage exists for society to recognize relationships between men and women that can lead to children.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said.

Judge Stephen Reinhart, one of a three-member panel of the U.S. 9th Circuit Court of Appeals hearing the case, appeared unconvinced.

"That sounds like a good argument for prohibiting divorce," he said, dryly. "But how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?"

Judge N. Randy Smith raised another issue: Under California law, same-sex couples have all the rights of marriage except the word "marriage." Given that, he asked, how does Proposition 8 protect marriage?

Answered Cooper: "You are left with a word, but a word that is essentially the institution."

The other major question was whether the anti-gay-marriage side had legal standing to appeal. If not,  then Judge Vaughn Walker's ruling would stand. 

The judges grilled anti-Prop. 8 attorney David Boies on the question of who has standing to appeal Walker's lower-court decision tossing the law.

Both Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown (now the governor-elect) declined to appeal Walker's decision.

That prompted the judges to question who did have the right to appeal, an important point, they noted, given that a majority of California's electorate voted in 2008 for Prop. 8.

"My problem is, in fact, the governor's and the attorney general's actions have essentially nullified the considerable efforts that were made on behalf of the initiative," said Smith, the most conservative judge on the panel.

He and other judges noted that neither Schwarzenegger nor Brown had the power to veto the proposition when voters approved it. But by declining to appeal the legal judgment, were they not effectively vetoing it?

Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by "certifying" the question to the California Supreme Court.)

FULL COVERAGE:

Does Prop. 8 violate equal-protections clause?

Is gay-marriage ban a violation of the right to marry or a denial of equal protection for gays?

Lawyer argues that marriage exists in society's interest so that men and women can procreate

--Jessica Garrison

Both Judges Reinhardt and Hawkins are focusing on the question of whether Prop. 8 is constitutional under the Supreme Court's prior decision in Romer vs. Evans.

In Romer, the U.S. Supreme Court said that a Colorado initiative which stripped gay persons of special protections under municipal anti-discrimination laws related to employment, etc., violated the federal equal protection clause. Thus, the judges are asking, isn't this case the same because the California Supreme Court decided that there was a right of same-sex marriage that Prop. 8 took away?

One view is that this case is the same, and that the people of California acted with "animus" (as the Supreme Court said of the Colorado voters in Romer) and intended to harm gay people by enacting Prop. 8 because of their moral disapproval of same-sex relationships. Another view is that this case is different because the people of California have already given same-sex couples all rights and obligations of marriage except the formal name, and thus evidence no dislike of same-sex couples or desire to harm them, but simply wish to proceed cautiously or experimentally before fully changing the traditional institution of marriage.

Which view will prevail will likely be influenced by the ideological proclivities of a particular judge, and at least at this stage of appeals it seems from the questioning that there are at least two of the three judges who adopt the former view.

FULL COVERAGE:

Is gay-marriage ban a violation of the right to marry or a denial of equal protection for gays?

Lawyer argues that marriage exists in society's interest so that men and women can procreate

Must appellate court accept findings of fact by judge who overturned Prop. 8?

Photo credit: Pepperdine University

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Erwin Chemerinsky, dean of UC Irvine School of Law, said that if the appellate court decides whether opponents of same-sex marriage have legal standing to appeal a judge’s ruling overturning the law, then it must decide whether Prop. 8 is unconstitutional. Here’s the analysis he provided The Times:

Assuming the court finds standing, it will then consider whether Prop. 8 is unconstitutional, as Judge Walker held, as a violation of the right to marry or a denial of equal protection for gays and lesbians. The conventional wisdom is that Judge Reinhardt, a liberal, would vote to affirm Judge Walker, and Judge Smith, a conservative, would vote to reverse and upheld Prop. 8. Therefore, attention in this hour is especially going to be on whether Judge Hawkins’ questions give any sense of how he is likely to rule on the question. Interestingly, the judges are being less active in their questioning so far than they were in the standing discussion, and the only questions in the first several minutes of Mr. Cooper’s defense of Prop. 8 have come from Judge Smith.

As the court considers whether Prop. 8 is unconstitutional, the crucial question is whether California has any legitimate interest in keeping same-sex couples from being able to marry.   Judge Smith posed this question directly and Mr. Cooper said that marriage is about procreation, but the problem with this argument is that gay and lesbian couples can and will have children even without marriage (and heterosexual couples can marry even if they don’t want to or can’t have children.) It is difficult to see why prohibiting marriage equality for gays and lesbians furthers the state’s interest in procreation. 

Judge Hawkins raised a key question that could be decisive for him (and therefore potentially the court).   He raises Romer vs. Evans, a 1996 Supreme Court case which struck down a Colorado initiative that repealed all laws in the state protecting gays and lesbians from discrimination and preventing any new laws protecting gays and lesbians from discrimination. The court found that the Colorado initiative served no legitimate purpose and found that its taking away rights from gays and lesbians violated the Constitution. Judge Hawkins' question focused on whether Prop. 8 does the same thing, by taking away the right to marry which existed for gays and lesbians before Prop. 8. Mr. Cooper stressed that the Colorado initiative repealed all laws protecting gays and lesbians, but Prop. 8 changed just one law. The question is whether Judge Hawkins (and the other judges) perceive that as a meaningful distinction.

Mr. Cooper, in defending Prop. 8, invokes the Supreme Court’s decision in Baker vs. Nelson from 1972.  The Minnesota Supreme Court rejected a constitutional challenge to the denial of marriage to gays and lesbians.  The Supreme Court issued a “summary affirmance” of the Minnesota Supreme Court.  There was no Supreme Court opinion. Mr. Cooper argues that Baker vs. Nelson is controlling here.  But Judge Reinhardt said that this was before Supreme Court decisions protecting gay and lesbian rights.  Also, it did not involve a situation where an initiative amended a state constitution to repeal a right.   Mr. Cooper is giving little emphasis to Baker vs. Nelson because it is very unlikely that the 9th Circuit will decide this case based on a Supreme Court summary affirmance where there was no opinion from almost 40 years ago.

FULL COVERAGE:

Lawyer argues that marriage exists in society's interest so that men and women can procreate

Must appellate court accept findings of fact by judge who overturned Prop. 8?

Issue of same-sex marriage may end up back in state court

In the second hour of the hearing on Prop. 8, the judges dug into the issue of whether the Constitution permits the state to make distinctions between same-sex and opposite-sex marriages.

Charles Cooper, who is arguing in favor of Prop. 8, argued that marriage exists for society to recognize relations between men and women that can lead to children.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said.

Judge Stephen Reinhart, one of a three-member panel of the U.S. 9th Circuit Court of Appeals hearing the case, appeared unconvinced.

"That sounds like a good argument for prohibiting divorce," he said, dryly. "But how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?"

Judge N. Randy Smith raised another issue: Under California law, same-sex couples have all the rights of marriage except the word "marriage." Given that, he asked, how does Prop. 8 protect marriage?

Answered Cooper: "You are left with a word, but a word that is essentially the institution."

FULL COVERAGE:

Must appellate court accept findings of fact by judge who overturned Prop. 8?

Issue of same-sex marriage may end up back in state court

If governor and attorney general don't defend gay-marriage law, who can?

-- Jessica Garrison

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Barry P. McDonald, a professor at the Pepperdine School of Law, says the second portion of Monday’s hearing is focused on whether the appeals panel must accept findings of fact made by U.S. District Court Judge Vaughan R. Walker when he overturned the state’s ban on gay marriage. Here's an analysis he provided to The Times:

In the next hour, assuming the court finds that there is standing to prosecute this appeal, arguments will focus on to what extent the appellate court must accept findings of fact by Judge Walker on key issues like whether sexual orientation is a matter of nature or choice, or whether children suffer any harm by being raised in gay households. The Prop. 8 challengers will be invoking a general rule that says appellate courts must normally give great respect and deference to facts found by a trial court. The Prop. 8 sponsors will be arguing that there is an exception to this rule for what they call "legislative" facts. The existence and scope of this exception is very murky in the case law, but essentially it says that when a court is determining sociological "facts" as opposed to facts about the parties in a particular case, then appellate courts do not need to give such sociological findings deference and can determine those questions for themselves.

The U.S. Supreme Court has not spoken definitely to this exception, but the few remarks they have made about it indicate that many justices would probably agree with it and accept it.  The concern they would have is that important questions of constitutional law could turn on precisely which sociologists a party selected to testify at trial, and what particular view they held on certain issues (in other words, the court would be concerned that social science "is not an exact science" and like all science can be manipulated to serve a person's interests).  And those concerns would be magnified in this case because the Prop. 8 sponsors presented only two people to testify on these issues, who Judge Walker himself thought were not qualified to speak to such questions.

The bottom line: I believe it is likely that were this case to reach the Supreme Court, it would feel free to take an independent look at scholarly literature and other sources of information to determine whether such sociological questions were at least open to reasonable debate.

FULL COVERAGE:

Issue of same-sex marriage may end up back in state court

If governor and attorney general don't defend gay-marriage law, who can?

If ruling overturning Prop. 8 allowed to stand, court must decide who would be bound by it

Photo: Barry P. McDonald. Credit: Pepperdine School of Law

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Courtney Joslin, an acting professor at the UC Davis School of Law, says the hearing seems to indicate that the issue of same-sex marriage may be headed back to California state courts. Here's the analysis she provided The Times:

[For the record, 12:34 p.m.: An earlier version of this post incorrectly transposed the name of acting Prof. Joslin. Her correct name is Courtney Joslin.]

The issue of whether same-sex couples should be permitted to marry in California has followed a winding and complex path.

In May 2008, the California Supreme Court held that the statute limiting marriage to the union of a man and a woman violated the California Constitution. Approximately six months later, the people of California narrowly approved Prop. 8, an amendment to the California Constitution eliminating the right of same-sex couples to marry, and once again limiting marriage in California to the union of one man and one woman.

Immediately after Prop. 8 was approved, a number of lawsuits were filed in California state court challenging its validity. In May 2009, one year after its In re Marriage decision, the California Supreme Court held that Prop. 8 was a valid amendment to the California Constitution. The same week that the state Supreme Court upheld Proposition 8 in that decision, David Boies and Ted Olson filed Perry vs. Schwarzenegger, the case now before the U.S. 9th Circuit Court of Appeals.

Monday morning's hearing suggests that the issue of marriage for same-sex couples may be headed back to California state courts.

In the first hour of the hearing, the 9th Circuit panel focused on the issue of whether there is any party properly before court who seeks to defend Prop. 8. The named defendants -– the California attorney general and the governor -– declined to file an appeal of Chief U.S. District Court Judge Vaughn R. Walker’s ruling holding Prop. 8 invalid under the federal Constitution.

In a recent case, the U.S. Supreme Court expressed "grave doubts" as to whether the official proponents of an initiative have standing to defend the initiative in the absence of any state defendants, unless state law officially grants them the right to act as agents of the people.

The Prop. 8 proponents have argued that California law does grant them such a right. Those opposed to Proposition 8 have argued to the contrary.

The questioning from the 9th Circuit panel suggests that California state courts may have to once again wade into legal issues related to marriage for same-sex couples. At various points in the hearing, panel members asked counsel whether the court should ask the California state courts to determine whether there is any such California law.

FULL COVERAGE:

If governor and attorney general don't defend gay-marriage law, who can?

If ruling overturning Prop. 8 allowed to stand, court must decide who would be bound by it

Federal appeals panel might return some issues to state Supreme Court

Photo: Courtney Joslin.  Courtney. Credit: UC Davis