NCLR’s Analysis of the Ninth Circuit Prop 8 Ruling

By Shannon Minter, Esq.
National Center for Lesbian Rights Legal Director

(San Francisco, CA, January 4, 2011)—Today brings a new development in Perry v. Schwarzenegger, the federal constitutional challenge to California’s Proposition 8, which amended the California Constitution to strip same-sex couples of the freedom to marry. Perry is currently on appeal before the Ninth Circuit Court of Appeals, the federal appeals court that covers California. In a ruling issued this morning, the Ninth Circuit denied Imperial County’s attempt to intervene in the case. The Ninth Circuit also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the ballot has a legal right to appeal District Court Judge Vaughn Walker’s decision that Prop 8 is unconstitutional.

To understand what today’s ruling means, it is helpful to look back on the history of the Perry case. In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California. Judge Walker permitted Prop 8’s official supporters to intervene in the case as defendants, and also permitted the City and County of San Francisco to intervene as a plaintiff to represent its unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant.

After a three-week trial in January 2010, Judge Walker ruled in August 2010 that Prop 8 violates the United States Constitution’s guarantees of due process and equal protection of the laws. Judge Walker also ruled that Imperial County did not have the right to intervene as a defendant. California’s Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed
appeals with the Ninth Circuit.

At oral argument on December 6, 2010, the Ninth Circuit panel asked all sides questions about whether the official supporters of Prop 8 have the legal right to appeal Judge Walker’s decision. The parties also addressed whether Imperial County should have been allowed to intervene in the case as a defendant.

Today, the Ninth Circuit panel upheld Judge Walker’s decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In order to intervene, Imperial County would have needed to show that it had a significant interest at stake. The Ninth Circuit explained in today’s opinion that Imperial County did not have any interests that would be sufficiently affected by the outcome of this lawsuit.

In addition, the Ninth Circuit made clear in today’s ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker’s decision that Prop 8 is unconstitutional, the appeal is over. In order to answer that question, the Ninth Circuit has asked the California Supreme Court to clarify whether California law gives Prop 8’s supporters the right to pursue an appeal when the state’s official representatives, after carefully evaluating the interests of the entire state, have made a considered decision not to appeal.

Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law—that is, whether they have "standing" to appeal. The California Supreme Court may hold that California law does not give initiative sponsors the right to override the litigation decisions of the state’s official representatives. If so, then the Ninth Circuit likely will hold that the Prop 8 supporters do not have standing. That would mean that the Ninth Circuit would dismiss the appeal, Judge Walker’s ruling would stand, and same-sex couples would once again be able to marry in California.

Alternatively, if the California Supreme Court were to hold that California law gives initiative sponsors the extraordinary power to bring an appeal over the objections of the Attorney General and the Governor, the Ninth Circuit would still have to decide whether Prop 8’s supporters meet all of the other criteria to have standing under federal law. If it ultimately holds that the Prop 8 supporters have standing, then the Ninth Circuit could reach the merits of Judge Walker’s ruling that Prop 8 is unconstitutional.

The next step after today’s ruling is for the California Supreme Court to decide whether it will accept the Ninth Circuit’s request. If it does so, it will then get briefs from both sides, and might hear oral argument as well before ruling. There is no set timeline for the California Supreme Court to rule. In previous cases, it has taken the California Supreme Court up to two years to answer a question sent to
it by the Ninth Circuit. Given the importance of this case and the real harm that inequality causes to LGBT people every day, however, we are hopeful that the Court will act quickly to restore fairness and equality for same-sex couples in California.

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.
www.nclrights.org.

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