Prop 8 federal case delayed for several more months

A huge new delay was introduced into the federal case against California's Proposition 8 yesterday.

The case is before the 9th U.S. Circuit Court of Appeals, which, after hearing oral arguments (photo) in December, punted off a question to the California Supreme Court.

The California Supreme Court now has decided, unanimously, that it will indeed answer the question and has set up a briefing schedule, to be followed by oral arguments no sooner than September.

The 9th Circuit asked the California Supreme Court if the people who put Prop 8 on the ballot have any legal right, under California law, to be in court arguing to overturn last summer's federal District Court ruling that struck down Prop 8 as a violation of the U.S. Constitution.

Those proponents, ProtectMarriage.com, want to defend Prop 8 because California's governor and attorney general and everyone else who was sued in the federal Prop 8 case have refused to defend the constitutional amendment that, in 2008, re-banned same-sex marriage in the nation's most populous state.

The 9th Circuit decided it couldn't proceed with the case without hearing the California Supreme Court's opinion on ProtectMarriage's state-level right to defend Prop 8, which the 9th Circuit could then take under consideration in deciding whether to grant ProtectMarriage federal "standing" to appeal.

If ProtectMarriage is found to have no standing, then the case has no proper appellants and the 9th Circuit won't hear the appeal. Should that happen, the most likely outcome would be that the District Court ruling that struck down Prop 8 would take effect, and gay couples in California would be able to get married again -- although the standing question itself could end up being appealed by ProtectMarriage to the U.S. Supreme Court.

The question the California Supreme Court will answer, as asked by the 9th Circuit, is: "Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."

Shannon Minter, legal director of the National Center for Lesbian Rights, expressed annoyance at the new, lengthy delay in the case.

"For same-sex couples waiting to marry, and for all LGBT Californians waiting to be treated as equal citizens, the knowledge that they must endure further delay is incredibly painful and frustrating," Minter said. "Prop 8 should never have been permitted on the ballot. The rights of a minority should never be put to a popular vote. Prop 8 was a toxic, anti-democratic measure that continues to wreak havoc in the lives of real people and families. The court should move as quickly as possible to resolve this issue. It is clear that California law does not give initiative proponents the power to override elected state officials who have decided not to appeal a federal court decision holding that a challenged state law is unconstitutional. The California Supreme Court should rule accordingly, and the 9th Circuit should affirm Judge Walker's ruling. Prop 8 is blatantly unconstitutional, and it is past time for it to be gone."

Lambda Legal seemed even more annoyed by the day's developments, throwing a lengthy fit from atop its highest horse.

"Because the federal appeals judges said they need clarification, we look forward to a decision by the California Supreme Court confirming that initiative proponents lack legal standing to continue the Perry case," said Marriage Project Director Jennifer Pizer. "They are not law enforcers, and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others' rights. Initiative proponents also cannot step into the shoes of the attorney general, the governor or other state officials. The reason for this is basic: The governor and attorney general are elected by the people to represent all the people, not just one point of view on one issue, out of countless, competing concerns. Most importantly, state officials swear an oath to uphold the federal and state constitutions, including their abiding promises of equal protection and due process for everyone. Initiative proponents take no such oath, and have no such duties. Empowering initiative proponents with a special, new exception to these rules would be mistaken in any circumstances but the error is especially stark in this case. Prop 8's proponents claim to represent 'the people,' but in fact they only represent some 7 million voters in a state of 38 million residents. Moreover, according to the U.S. census, the tiny group of same-sex-couple residents targeted by Prop 8 is only around 200,000 people, or less than 2 percent of the population. The state high court's previous decision to allow the initiative power to be used in the unprecedented way Prop 8 did -- to strip a terribly vulnerable minority of a fundamental constitutional right -- also stripped the equality guarantees out of the California Constitution. Yet another departure now from bedrock California law to allow proponents an exception from the 'legal standing' rules would invite further, deeply problematic consequences. It would mean proponents could enter every case about an initiative to argue against the state's position. They could refuse ever to compromise about anything concerning the litigation process. And they could object to every settlement plan based on ideology about what the law should be, rather than what it is."

Equality California Executive Director Geoff Kors also was agitated.

"Every day that Prop 8 remains intact, thousands of same-sex couples and their families are denied fundamental rights and basic protections," he fumed. "We urge the California Supreme Court to reject this attempt by the right wing to strip the attorney general of her duty to reject this assault on the California Constitution. Knowing that they are likely to lose, far right-wing California Sen. Tom Harman has introduced a bill that would compel the attorney general to defend all ballot measures and appeal court decisions striking them down such as what happened with regard to Proposition 8. The bill would also authorize the groups that placed measures on the ballot to defend their measures in court if the attorney general is unable to. We call on all Californians to reject this attempt to take power away from the people's attorney, the elected attorney general, and give it to special interest groups."

Pool photo by AP's Eric Risberg

Judges hint at Prop 8 case twists and turns

The effort to undo California's Proposition 8 inched forward Dec. 6 when a three-judge panel of the 9th U.S. Circuit Court of Appeals entertained nearly three hours of oral arguments from the attorneys in the case.

In an ornate courtroom on the third floor of San Francisco's historic James R. Browning U.S. Courthouse, amid murals, stained glass and statues dating to 1905, the attorneys replayed some of their main arguments and the judges offered hints of where the case might go.

The gay side's lawyers, who include famed attorneys Ted Olson and David Boies, sought to defend U.S. District Judge Vaughn Walker's ruling from August that Prop 8 violates the U.S. Constitution's guarantees of equal protection and due process.

They also argued that the parties who brought the appeal to the 9th Circuit -- the activists who created Prop 8 and the deputy county clerk of Southern California's dusty Imperial County -- have no legal "standing" to have mounted this appeal of Walker's ruling.

Those parties are trying to defend Prop 8 because all the public officials who were sued in the case -- including Gov. Arnold Schwarzenegger and Attorney General (and Gov.-elect) Jerry Brown -- have refused to defend the voter-passed state constitutional amendment that re-banned same-sex marriage in November 2008 after it had been legal for 4 1/2 months and after 18,000 same-sex couples had married.

It is unclear if the court will grant the Prop 8 proponents or Imperial County standing to allow the appeal to move forward. The judges seemed unimpressed by Imperial County's desire to be let into the case. Among other things, they seemed annoyed that the deputy county clerk rather than the actual clerk is pursuing the move.

As to whether the people who put Prop 8 on the ballot should be allowed to step into the shoes of the state government and defend a piece of the state constitution that the state itself refuses to defend, the judges hinted that they might bounce that question off of the California Supreme Court to see how it feels about the idea. If the 9th Circuit does that, it could delay appellate rulings on both the standing issue and the merits of Judge Walker's decision.

On the merits, Olson told the judges that California has unconstitutionally "taken a class of citizens and put them in a separate category."

California gives same-sex couples all the rights and obligations of marriage under a domestic-partnership law, but prohibits gay couples from marrying. Under another law, gay couples who go get married somewhere else also receive all the California rights of marriage but are prohibited from calling their marriage a marriage in California. Yet other gay couples, who got married in California or somewhere else before Prop 8 passed, are considered to be married in California and are permitted to use the word. It's very messy.

All of this is discriminatory, Olson said. It harms gay Californians. There is no legal rational basis for it. It cannot be "justified," he said.

"California has built a fence around its gay and lesbian citizens and around the institution of marriage," Olson told the judges. "That is a violation of the equal-protection clause and it's a violation of the due-process clause."

Attorney Charles Cooper for the Prop 8 proponents told the judges that his case in defense of Prop 8 centers on "procreation."

In Cooper's view, it is rational for the state to limit marriage to men and women because the reason marriage exists in the first place is because sex between men and women produces children. The state, he suggested, has a unique interest in human unions that are procreative.

At the end of the day, court-watchers were talking about three things that piqued their curiosity during the oral arguments:

* Will the case be delayed so the 9th Circuit panel can sound out the California Supreme Court on the question of whether people who put initiatives on the ballot should be able to defend those initiatives when they are struck down by courts? Regardless of whether the judges seek advice from the California Supreme Court, the case cannot proceed if the 9th Circuit decides that neither the Prop 8 proponents nor Imperial County has legal standing to appeal. If they do not, Walker's ruling striking down Prop 8 would come back into force.

* In hearing the appeal of Walker's ruling, will the 9th Circuit rely solely on Walker's expansive trial record, which seems to demolish most of the myths, lies, arguments and opinions that historically have been used to oppress gay and lesbian people? Or will the 9th Circuit look at additional sources of information and seek out other "facts"? The court hinted that it may review more than just the District Court's findings.

* And has the 9th Circuit perhaps hinted that it plans to uphold Walker's decision but in a way that would limit the case's impact to California, the only state that ever let gays get married and then later took that right away from them? The court spent a fair amount of time discussing a 1996 case from Colorado in which the U.S. Supreme Court struck down a state constitutional amendment that deprived gay people of anti-discrimination protections that Colorado governments previously had extended to them.

A "narrow" ruling against Prop 8 by the 9th Circuit could bring same-sex marriage back to California but possibly thwart Olson, Boies and the American Foundation for Equal Rights' desire to take before the U.S. Supreme Court the proposition that same-sex couples have a constitutional right to get married in all states.

Pool photos by AP's Eric Risberg