[UPDATE: THE NINTH CIRCUIT HAS RULED - "BREAKING: Ninth Circuit Strikes Down Proposition 8 on Narrow Grounds."]
The U.S. Court of Appeals for the Ninth Circuit's public information office expects a ruling on Tuesday, Feb. 7 by 10 a.m. Pacific/1 p.m. Eastern Time in the Perry v. Brown case challenging the constitutionality of Proposition 8.
The long anticipated appeals court ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker's decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians' due process and equal protection rights guaranteed in the U.S. Constitution.
What's the background?
In May 2008, the California Supreme Court ruled, in a 4-3 decision, that California's Constitution prohibited the state from discriminating against same-sex couples in the state's marriage laws. By mid-June, couples began marrying -- although the future of same-sex marriage in the state already was headed to the November ballot.
Then, after about 18,000 same-sex couples had married in the state, on Nov. 4, 2008, the voters of the state of California elected Barack Obama president -- but also voted to pass Proposition 8, which amended California's Constitution to add, "Only marriage between a man and a woman is valid or recognized in California." This created an upending of an otherwise joyous night for progressives, which was borne out by protests across the state -- and country -- in the weeks that followed.
With the vote, though, the marriages came to a halt. An attempt to have the initiative thrown out under state law, brought by the organizations who had supported the original lawsuit, was unsuccessful. The May 2009 ruling of the California Supreme Court upholding the amendment as valid, however, galvanized, once again, opponents of Proposition 8.
What's this case?
The same day that the California Supreme Court ruled, word came that, very quietly, the law firm of Gibson Dunn & Crutcher LLP, with help from the law firm of Boies Schiller & Flexner LLP, had a few days earlier filed the lawsuit in federal court that all of the LGBT legal organizations had been avoiding: a direct, federal challenge to a state ban on marriage equality.
The challenge was not just any challenge, of course. It was not only that two of the leading national law firms were serving as the lawyers for plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo -- because big law firms had been helping the LGBT legal groups with cases for years. It was, instead, the lead lawyers, Ted Olson and David Boies, who made the headlines. The sparring partners in Bush v. Gore had come together to press the case for marriage equality.
The organization formed to bring the challenge -- the American Foundation for Equal Rights -- was an unknown entity until the day of the filing, and its leader, Chad Griffin, had -- also quietly -- pulled together the support of his PR firm, the Olson/Boies team and some Hollywood heavyweights gay and straight, including Milk screenwriter Dustin Lance Black and director Rob Reiner.
The headlines continued, but the case also moved forward quickly, with the proponents of Proposition 8 moving to intervene in the case to defend Proposition 8. Walker allowed this, noting at the time that this made sense considering that neither then-Gov. Arnold Schwarzenegger nor then-Attorney General Jerry Brown were going to defend the initiative at trial. In January 2010, a three-week trial was held, with closing arguments held in June 2010.
What was the trial court's decision?
On Aug. 4, 2010, U.S. District Court Judge Vaughn Walker held that Proposition 8 violated the federal constitutional guarantees of equal protection of the laws and due process of law, which protects "fundamental" rights -- including marriage.
Regarding equal protection, he found that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license." He concluded, "Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."
Regarding due process, he noted that marriage has been considered by the U.S. Supreme Court to be a fundamental right that he found was defined as "the right to choose a spouse and, with mutual consent, join together and form a household." He went on to discuss past marriage restrictions, including racial ones, then concluded, "Plaintiffs do not seek recognition of a new right. To characterize plaintiffs' objective as 'the right to same-sex marriage' would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy -- namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages."
What happened in the appeal thus far?
The state defendants -- then Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown -- decided not to appeal Walker's decision. The proponents of Proposition 8, however, did appeal.
The appeals court first heard oral arguments on the appeal on Dec. 6, 2010, at which time the issues of the proponents' standing to bring the appeal and the underlying constitutionality of the initiative amending California's constitution to prohibit same-sex couples from marrying were considered by the three-judge panel hearing the appeal.
The three judges are Judge Stephen Reinhardt, a Carter appointee known for being one of the most unabashedly liberal of judges in the appellate courts; Judge Michael Daly Hawkins, President Clinton's first nominee to the Ninth Circuit; and Judge N. Randy Smith, a conservative Bush appointee who attended Brigham Young University for both undergraduate and law school education and previously served as the head of the Idaho Republican Party.
Those judges, on Jan. 4, 2011, sent a certified question to the California Supreme Court, asking it to answer two questions about California state law: (1) whether "the official proponents of an initiative measure possess either a particularized interest in the initiative's validity" or (2) whether they have "the authority to assert the State's interest in the initiative's validity." The California Supreme Court accepted the certified question, heard arguments on the matter on Sept. 6, 2011, and decided that the proponents would have "the authority to assert the State's interest" under state law.
The Ninth Circuit then sought additional briefing on that matter, which the parties submitted to the court. The court also heard oral arguments on Dec. 8, 2011, about whether Walker should have recused himself from hearing the case.
What will happen on Tuesday and beyond?
On Tuesday, the Ninth Circuit is expected to rule on the questions of Walker's recusal and the proponents' standing. The court, if it holds that recusal was not necessary and that the proponents do have standing, will address the constitutionality of Proposition 8. As the public information office is not the court's judges, its words are not law, but today's notice does gloss over the standing question, which would make it appear that the court is likely to find that the proponents do have standing -- which was to be expected in light of the California Supreme Court's decision on that matter.
[UPDATE @ 5:30P: As the Ninth Circuit previously had issued a stay of the trial court's judgment pending appeal, there is no reason to think that the court's opinion -- should it affirm the unconstitutionality of Proposition 8 -- will take effect immediately. The judges almost certainly will issue a stay of their decision to allow the proponents to decide whether they will appeal such a decision.]
At that point, any party dissatisfied with the ruling could seek en banc review, which would require all the active Ninth Circuit judges to vote whether en banc consideration will be given. If a majority supports en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal.
Then further review by the full Ninth Circuit -- referred to as "super en banc" consideration -- or a request to the Supreme Court to hear the case could follow.
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UPDATE @ 6P: There appeared to be some momentary confusion at the Ninth Circuit today. The court briefly placed an order denying the Imperial County Clerk's motion to intervene in the appeal of Walker's denial of an deputy county clerk's motion to intervene, representing Imperial County, in the Perry v. Schwarzenegger trial.
The deputy county clerk's intervention was discussed at the December 2010 oral arguments, with the judges appearing skeptical of whether a county clerk could intervene -- let alone a deputy. The court, in an opinion on Jan. 4, 2011, dismissed Imperial County's appeal. Later, the county clerk, Chuck Storey, sought to intervene.
Today, the court published and then withdrew an order by Reinhardt, Hawkins and Smith rejecting that motion, as well as noting that it considered the motion as one to intervene in the main appeal of Perry v. Brown and had rejected that as well. The one-paragraph opinion noted that the motion was denied as untimely, "[a]s we explain in our concurrently-filed opinion in Perry v. Brown, Nos. 10- 16696 and 11-16577."
There is not yet an opinion in Perry v. Brown, as that is the opinion expected by 10 a.m. Pacific Time on Tuesday, Feb. 7, and this order relating to Imperial County's clerk apparently was released in error. The court's docket now states, "COURT DELETED INCORRECT/DUPLICATE ENTRY-- ORDER ISSUED IN ERROR. Notice about deletion sent to case participants registered for electronic filing.  (WL)"
Although it appears the court released this order early, it would mean little -- assuming it was an accurate, but prematurely filed, order -- if the court finds that the proponents have standing. If they find, however, that the proponents lack standing, then this -- standing for Imperial County to appeal -- would be the only other route by which the appellate court could reach the underlying question about the constitutionality of Proposition 8.