Why Challenge the Prop 8 Proponents’ Appeal?

Since U.S. District Judge Vaughn Walker issued his decision on Wednesday, August 4, striking down Proposition 8, many folks have become fixated on an element that no one seemed all that concerned about for the past year: the status of the “Defendant-Intervenors,” the Proposition 8 proponents.

The thinking goes like this: Proponents, as intervenors (as opposed to the actual defendants), don’t have the ability to appeal the case to the U.S. Supreme Court or, as the plaintiffs argued on Friday in opposing the stay sought by the proponents, even to the Ninth Circuit. What’s more, people argue, the Supreme Court wouldn’t take the case even if the proponents get to the point of asking the Supreme Court to hear the case.

Some might say that the lawyers for the plaintiffs should do whatever they can to win the case, but, with this argument, I don’t believe it is wise or even necessarily correct.

Trying to keep the proponents from appealing an adverse court decision seems to me to be precisely the wrong move right now. It gives unnecessary ammunition to opponents of marriage equality, who have been trying to argue that going to court at all is somehow “unfair” for trying to “overturn the will of the voters.” The “will of the voters” argument, however, is bunk because it doesn’t matter what one state’s voters want if their action violates the federal Constitution. It’s completely fair and just to challenge Proposition 8 in federal court for that reason.

At the same time, however, the appellate courts are the safeguard of the federal judiciary. A federal district court judge — like Walker — is subject to review from the Ninth Circuit, which is then subject to the review of the Supreme Court.

Setting up the opponents of marriage equality like the National Organization for Marriage and others by trying to stop that appellate process risks giving legitimacy to what has been, thus far, an illegitimate argument.

To explain further, let’s look back to the start of the case. Back in June 2009, after the Perry v. Schwarzenegger lawsuit was filed, many in the LGBT community were thrilled that California Attorney General Jerry Brown (D) agreed with the plaintiffs that he believed Proposition 8 was unconstitutional and that California Gov. Arnold Schwarzenegger took no position on the constitutionality of the law and would not be defending it. Accordingly, however, the proponents of Proposition 8 filed a motion with the court seeking to intervene in the case.

There are two types of intervention that a court can grant: intervention of right and permissive intervention. “Intervention of right” is intervention that must be granted by the court, while permissive intervention is discretionary. Judge Walker granted intervention of right in this case, writing in a tentative order on June 30:

The proponents of Prop 8 meet all four of [the rule for granting intervention of right]’s criteria:  (1) their motion to intervene is timely, filed just days after plaintiffs filed the complaint; (2) as official proponents, they have a significant protectible interest in defending Prop 8’s constitutionality; (3) their interest in upholding Prop 8 is directly affected by this lawsuit; and (4) their interest is not represented by another party, as no defendant has argued that Prop 8 is constitutional. Significantly, with respect to the last factor, although the responsibilities of the Attorney General of California contemplate that he shall enforce the state’s laws in accordance with constitutional limitations, Attorney General Brown has informed the court that he believes Prop 8 is unconstitutional.

Because the proponents have established their entitlement to intervene as of right, the court GRANTS the proponents’ motion to intervene as defendants.

Perry, Order of June 30, 2009, at 3 (citations omitted). At the hearing on July 2 regarding, among other topics, the intervention motion, Judge Walker asked the parties — including the plaintiffs — if there was any objection to granting the intervention of right. There was no objection, and the intervention of right was granted.

This made sense, as Walker acknowledged, for the obvious reason that it would be hard to hold a trial with no defendant. That no state official would defend it, moreover, goes to show that — despite winning at the ballot box — the proponents could not guarantee that their interest in having the outcome of their initiative enforced would be adequately represented in court.

With that, the trial went forward, closing arguments were held in June of this year and Walker issued his decision on Wednesday.

Now, however, the plaintiffs argued in their filing on Friday that there is a “significant question as to whether proponents even have standing to invoke the jurisdiction of the court of appeals.”

Although the argument was not fully laid out in the filing on Friday, it looks quite weak to me on the legal merits. All of the cases cited by plaintiffs appear from my review to relate only to instances where permissive intervention was granted and not intervention of right, as the proponents have here. Additionally, the cases cited appear to involve situations in which the state whose law or initiative was at issue did itself defend the law and, at some point in the appellate process, decided against appealing a lower decision. Here, of course, the intervening defendants were the only individual or entity defending the amendment even at trial.

So, even if the plaintiffs do attempt to keep the proponents from appealing, it’s not clear to me that they have the legal arguments to succeed. (And, even if the proponents do lack standing, standing is an issue that can be addressed by a court sua sponte, or by itself, regardless of whether the parties raise it.)

Finally, assuming that the Ninth Circuit allows the proponents to appeal and hears the case and then, assuming they lose, proponents appeal to the U.S. Supreme Court, some have said that the Supreme Court won’t take the case because the court hasn’t ever heard a case in which the only defendant was an intervening defendant. First of all, such a broad assertion seems unlikely (and I’ve only seen it made without reference to articles or studies claiming this), but I also haven’t done a full review myself so I can’t say definitively either way. But, regardless, as I wrote in an email to SCOTUSblog‘s Tom Goldstein about this, something about it seems not right.

Goldstein, who appears regularly before the justices and whose blog is the gold standard of online reporting about the court, more or less agreed, writing, “I don’t think the Court will think twice about the status of the defendants here given the unique situation in California. If they want to get involved, that won’t hold them back for an instant.”

That makes sense to me.

The case laid out at trial by the legal team led by Ted Olson and David Boies was impeccable. The argument — legally, publicly and morally — was nearly flawless. For all of the reasons described above, however, I see fighting the decision of the intervening defendants to appeal as a potential — and unnecessary — misstep.