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Are you ready for a gay ol’ time? The holiday season is shaping up to be quite gay, indeed.
Last week, the Pentagon released its long-awaited report detailing how ending the ban on openly gay service would be no big deal. And, at 10 am on Monday, Dec. 6, Ted Olsen, David Boies and their legal team head to the Ninth Circuit Court of Appeals courtroom in San Francisco to argue that marriage equality should return to California.
The first part of the argument will discuss standing -- whether the Proposition 8 proponents even have the right to bring this appeal. The second part of oral argument will touch on the merits of Judge Vaughn Walker's decision that declared Proposition 8 unconstitutional.
The panel, a typical 2-1 liberal-conservative Ninth Circuit divide, has many options open to it. The most likely result is a denial of standing (in which case the Prop. 8 proponents could appeal to the U.S. Supreme Court or just give up, making marriage equality a reality).
Here is what to expect. Olson and Boies will first argue that the Prop. 8 proponents -- a group of conservative activists -- do not have the right to bring the appeal in the first place.
I have summarized that argument here, but let's discuss it. In order to have standing to appeal an adverse district court opinion, or a lower court decision that went against you, you have to be injured in some way. You have to be ordered to do something you don't want to do. In a civil case, sometimes this involves paying damages or hiring someone back whom you fired for unlawful reasons.
The problem for the Prop. 8 proponents is that Judge Walker never ordered them to do anything. He told the State of California to start issuing marriage licenses to same-sex couples; he did not tell a group of conservative activists to do anything. Since Gov. Arnold Schwarzenegger and Attorney General Jerry Brown (soon to be governor after his election on Nov. 2) declined to appeal -- in fact, both are eager to usher in marriage quality in California -- the party ordered to act is no longer part of the case.
I believe the Ninth Circuit will decide that the Prop. 8 proponents lack standing and stop there. Conservative judges and conservative justices on the U.S. Supreme Court have been narrowing standing rights for nearly 30 years and any approach to this case must be consistent with that jurisprudence.
But, denial of standing is by no means certain. Granted, my interpretation of standing doctrine suggests to me that Olson and Boies have the stronger argument. However, current law on standing derives from a conservative judicial revolution that has, since the 1970s, increasingly denied access to appellate courts to an increasing number of petitioners.
But the Prop. 8 Ninth Circuit panel is weighted 2-1 with liberal judges, one of whom is regarded as the most liberal appellate court judge. The senior judge on the panel will be Judge Stephen R. Reinhardt, a former Los Angeles lawyer who is known widely as perhaps the most aggressive liberal judge on the federal courts. He will sit with Michael Daly Hawkins, a former Arizona lawyer and prosecutor. He, like many Clinton-era appointees, is a moderate to left-of-center jurist. The third member of the panel will be N. Randy Smith, a former Idaho lawyer and state judge, a moderate-to-conservative jurist with an excellent reputation among the appellate bar. He is thoughtful and whip smart.
The liberal judges on the Prop. 8 panel may not be willing to lend credence to a tight standing doctrine with which they disagree. That means there are two possible outcomes on standing:
If the Ninth Circuit denies standing to the Prop. 8 proponents, two things could happen next. The proponents could request an en banc rehearing (or a rehearing before 11 or so judges of the Ninth Circuit) and then appeal that ruling to the U.S. Supreme Court. In that case, the stay of Judge Walker's ruling will continue until the Supreme Court rules, which means that no same-sex marriages will take place.
Alternatively, the Prop. 8 proponents could give up, at which point, the stay would lifted upon the entry of the Ninth Circuit judgment, Judge Walker's decision would be affirmed for lack of standing and marriage equality would be welcomed back to California with open arms.
There are a few wild cards to keep in mind, though.
One wild card is Judge Reinhardt. He is not only a liberal lion, but he is the most reversed judge in the appellate courts. For better or for worse, the U.S. Supreme Court tends to pay extra attention when Judge Reinhardt’s name is on an opinion. The judge’s penchant for aggressive jurisprudence may serve as a lightning rod for conservative activists and the clerks at the Supreme Court.
Another wild card is what to do with the merits of the case. Here is the second possible outcome. If we assume the Ninth Circuit denies standing, it need not reach the merits. That may not stop them, but it would be classic judicial overreach. It would not be grounds for reversal at the U.S. Supreme Court (any discussion of the merits would, after all, be dicta, or discussion in an opinion that is not really necessary to the ultimate decision). But, the court would be well within its rights to assume standing -- not decide it -- because it is eager to reach the merits.
You can imagine that liberal jurists may be eager to enshrine marriage equality in the Ninth Circuit and a decision on the merits affirming Judge Walker's decision could have implications for every state under the jurisdiction of the Ninth Circuit. I would argue that even an affirmance on the merits would not force marriage equality on states like Idaho and Utah simply because of the unique procedural history of the California same-sex marriage ban. But, legal scholars are divided on that front.
In other words, a full affirmance of Judge Walker's decision on the merits is possible if the judges decide to assume standing simply for the purposes of reaching a pro-gay decision. That would be what conservatives call "judicial activism." If it weren't for Judge Reinhardt, I would say likelihood of such a decision is remote. That is why appellate attorneys do not like wild card judges.
If the Ninth Circuit affirms the merits, the Prop. 9 proponents would almost certainly appeal to the U.S. Supreme Court, at which point, hundreds of friends of the court, or amici curiae, will file briefs on either side. Though I have argued here that Judge Walker wrote his decision with an eye toward getting Justice Anthony Kennedy's vote, what happens at the Supreme Court is, again, a wild card.
We must not forget that the Ninth Circuit may grant standing and reverse Judge Walker. The panel may also grant standing and remand for further fact-finding on some issue. A remand, by the way, which would create a whole new trial on some factual matter, is why the election for California's next governor and attorney general was important for this case. During the campaign, Republicans Meg Whitman and Steve Cooley pledged to appeal Prop. 8. They both lost. If the case is remanded, the state would have a new opportunity to rejoin the case and appeal.
So, let's sum up:
First, what is happening on Dec. 6 is oral argument. We will not likely get the decision for months.
The most likely result, in my opinion, is an affirmance for lack of standing.
At that point, the Prop. 8 proponents could give up, and, because the case would be over, the stay would be lifted and marriage equality would come back to California.
Or, the proponents could request an en banc rehearing of the larger Ninth Circuit and then appeal the denial of standing to the U.S. Supreme Court. In that case, the stay would continue until the high court rules. While it is hard to handicap the Supreme Court, I find it unlikely that the high court would grant standing in this case, especially if the Ninth Circuit denied it below.
The wild cards are Judge Reinhardt, whose liberalism is a lightning rod for the Supreme Court -- and the possibility that the Ninth Circuit may want to assume standing -- not decide it -- to reach the merits of the case. That would be judicial activism, but it could have implications for marriage equality in the entire Ninth Circuit.
If that admittedly remote possibility comes to fruition, such a decision would certainly be appealed and would be more likely to be reversed at the Supreme Court.
A decision to reverse Judge Walker's ruling that Prop. 8 is unconstitutional seems unlikely given the temperament of the three-judge panel.
An exciting time to be alive.
Ari Ezra Waldman is a graduate of Harvard College and Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Waldman is now on the faculty at California Western School of Law in San Diego. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. For more information about professor Waldman and his work, visit www.cwsl.edu.