Prop 8 Argument Day FAQ

The topic of same-sex marriage — particularly, marriage in California — has popped into the public’s eye with regularity over the past two-and-a-half years. On Monday — with the U.S. Ninth Circuit Court of Appeals hearing the oral arguments in Perry v. Schwarzenegger, the challenge to the state’s Proposition 8 — the attention will again turn to the West Coast and marriage.

So, what do you need to know to get through Monday?

Here they are: The top 10 questions for Monday’s oral arguments.

1. What is the background here?

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.

2. What’s so special about 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, and a three-week trial was held in January 2010, with closing arguments held in June.

3. So, what happened?

An Aug. 4, 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.”

Concluding that Proposition 8 is unconstitutional on both of those grounds, he also later refused to stay his ruling — or keep it from being enforced — while the proponents of the measure attempted to appeal his decision. He did, however, give them a brief period of time to seek a stay from the Ninth Circuit, which the Ninth Circuit granted. The parties and other groups and individuals interested in the case filed briefs giving the court their views, and argument was scheduled for Monday, Dec. 6, 2010.

4. And, Monday is?

At 10 a.m. Pacific Time on Monday (1 p.m. on the East Coast) the three Ninth Circuit judges who were randomly assigned to hear the case will conduct two hours of arguments — to be televised live on C-SPAN and elsewhere — about the issues in the case.

The judges themselves have been noteworthy, with the proponents asking for Judge Stephen Reinhardt, a Carter appointee known for being one of the most unabashedly liberal of judges in the appellate courts, to recuse himself because of his wife’s leadership of the ACLU of California and involvement in discussions about whether to bring the case — a request he quickly turned down. The other two judges are 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.

The first hour of oral arguments, in which the judges will ask the attorneys questions at will, is to be focused on the issue of standing and will give half of the proponents’ time to the lawyers for Imperial County to argue that they should have been allowed to intervene in the case to defend Proposition 8. The second hour is to be focused on the merits of the case, with the attorney representing San Francisco County to be given 10 minutes to argue against the constitutionality of the measure along with the AFER team.

5. What about the proponents’ standing?

Because the parties who have to follow Walker’s ruling — the state defendants — chose not to appeal the trial court’s ruling, previous U.S. Supreme Court cases throw into doubt whether the proponents have standing — one of a series of doctrines that relate to the requirement that federal courts can only hear cases involving a “case or controversy,” or actual dispute.

The proponents will argue that they have standing because California courts have recognized that initiative proponents do have the ability to defend challenges to the initiative in state court. Additionally, they will be arguing that the reason why they should be found to have standing is especially clear here, where there would be no ability for higher court review of Walker’s ruling if initiative proponents are denied standing. The plaintiffs, meanwhile, will argue that the state cases are inapplicable to the federal “case or controversy” requirement and that, under the federal law, the proponents simply do not have the ability to appeal a decision like the trial court’s in this case.

6. What is the deal with Imperial County?

Imperial County is located in the far southeast corner of California, and it is represented in this case by lawyers from Advocates for Faith and Freedom — which describes itself as “a non-profit law firm dedicated to protecting religious liberty in the courts.” Walker denied Imperial County’s request to intervene at the trial level, and the plaintiffs will argue before the Ninth Circuit that Walker’s denial was proper because — as with the proponents — Imperial County and its officials “have no duties related to the enforcement of California’s marriage laws.”

Imperial County, however, will argue that they are, in fact, responsible for reviewing and granting or denying marriage licenses and are a proper party to the lawsuit who should have been allowed to intervene because their interests were not otherwise being met.

7. What are the merits of the case?

The merits of the case, as discussed in terms of Walker’s ruling, are the equal protection and due process questions. Look for the proponents to attack Walker’s findings of fact and conclusions about the state’s interests in limiting marriage to opposite-sex couples and for the plaintiffs to focus in on Walker’s conclusion that there is no rational basis for Proposition 8 and that it is instead “based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women.”

Among the interesting questions to be tossed around will be the level of scrutiny that classifications based on sexual orientation should receive. The plaintiffs argued at trial that a heightened scrutiny should apply; the proponents argued that rational basis would suffice. Although Walker found that “strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” he also found that Proposition 8 failed even to meet the lowest level of scrutiny. If the Ninth Circuit decides that strict scrutiny should apply, then it would be more difficult to uphold Proposition 8 as constitutional because it would have to be proven to serve a “compelling” governmental objective and be the “least restrictive means” of achieving that objective. If a rational basis would suffice, then the amendment merely needs to be found to be “rationally related” to a “legitimate” government interest.

Finally, as to due process, the primary question is the definition of the “fundamental right” at issue. If the right is “marriage” being sought, then same-sex marriage prohibitions are more likely to be seen as an unconstitutional exclusion. If the right being sought is “same-sex marriage,” then that is a new right being sought, which is difficult to secure under prior U.S. Supreme Court rulings.

8. What could the court rule?

With no specified timeline, the court will issue its ruling — although the fact that the court gave the case expedited consideration as to briefing and the scheduling of the oral arguments suggests it is cognizant of the desire for a quick resolution of the case.

If the court holds that some party has standing to appeal Walker’s ruling, it could affirm the trial court and say that Proposition 8 is unconstitutional or it could reverse the trial court and say that Proposition 8 is constitutional. At that point, the ruling would have “precedent” — meaning the judges would need to adhere to it — in all of the trial courts in the Ninth Circuit.

The court also could find that neither the proponents nor Imperial County have standing and dismiss the appeal. This would leave Walker’s ruling in place and invalidate Proposition 8, but would limit the ruling only to his order and provide no appellate precedent that would apply to the entire Ninth Circuit.

To take the least likely position, it could dismiss the appeal and also hold that no standing existed at trial, which could lead the appellate court to vacate Walker’s judgment and, effectively, erase the entire case. This would mean that Proposition 8 would remain in effect. Because the state of California was enforcing Proposition 8 at the time of trial — and still now — it would be extraordinary for the court to take this route.

9. What happens after that?

Once the three-judge panel issues its decision, the party or parties unsuccessful on appeal — on standing or on the merits — could seek a review of the decision by an en banc panel of the court. Usually, en banc appeals involve all of the active judges on the court, but the Ninth Circuit has a unique ”limited en banc” procedure in which all the active Ninth Circuit judges 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.

After that, theoretically, a party dissatisfied with an en banc ruling of the Ninth Circuit can ask for the full Ninth Circuit to review the en banc panel’s decision, but the court has not agreed to do so since adopting the “limited en banc” procedure.

After en banc consideration or in lieu of even attempting it, the unsuccessful party can petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.

10. Outside of California, does this matter?

Yes, but it is not clear yet how much and whether it will matter only as to the public discussion that the case has raised or as to the law. As discussed above, a decision on the merits by the Ninth Circuit could have enormous impact depending on the scope of the ruling. Because of the breadth of the circuit, marriage laws from Hawaii to Idaho to Alaska could be impacted.

Moreover, if a party eventually appeals the case to the Supreme Court and the court takes the case, the precedent of that decision, of course, would apply across the country. If a decision on the merits by the Supreme Court is as broad as Walker’s trial court decision, then laws from the federal Defense of Marriage Act to states’ laws or amendments prohibiting same-sex marriage could be in question.

But, no matter the happenings on Monday, that day is a ways off.