Another Round in Gay Marriage Case

Another Round in Gay Marriage Case
By JESSE McKINLEY
copyright by The New York Times
Published: August 15, 2010
http://www.nytimes.com/2010/08/16/us/politics/16prop.html?th&emc=th


SAN FRANCISCO — In all of the legal maneuvering surrounding the challenge in federal court to Proposition 8, California’s 2008 voter-approved ban on same-sex marriage, one thing has seemed all but certain: the case would eventually head to the Supreme Court.

But that trip could come — in a way — as soon as this week, as proponents of the ban seek to prevent a resumption of same-sex marriages. Judge Vaughn R. Walker of Federal District Court, who this month ruled Proposition 8 to be unconstitutional, lifted a temporary stay on his decision on Thursday, but allowed six days for a three-judge panel of the United States Court of Appeals for the Ninth Circuit to review it.

Some legal experts are skeptical of whether the Ninth Circuit panel — made up of two Democratic appointees and a moderate Republican — will intervene. And so it is that proponents may find themselves heading to the Supreme Court to try to obtain an emergency stay.

It is at that level that proponents, who are on a legal losing streak, may find some relief, experts say.

Richard L. Hasen, a professor at Loyola Law School in Los Angeles who has commented extensively on the Proposition 8 trial, said the Supreme Court had been somewhat dismissive of decisions from the Ninth Circuit, particularly on “hot-button issues.”

“It’s really hard to predict what the court is going to do, but it seems in those cases that the Supreme Court is less deferential,” Mr. Hasen said.

If proponents did go to the Supreme Court, Mr. Hasen said, the justices would not be ruling on the facts or findings in the case, but on whether there was a potential harm being caused by Judge Walker’s lifting of the stay.

“A decision granting a stay would not necessarily portend a reversal on merits,” Mr. Hasen said. “It just preserves the status quo” that no same-sex marriages could be performed in California.

Going to the Supreme Court for a stay is not rare: it occurred in the Proposition 8 case in January, when supporters petitioned the court to prevent the trial from being broadcast online. That attempt was successful, with the court voting to ban streaming video from Judge Walker’s courtroom.

In trying to prevent same-sex marriages, however, proponents may have another hurdle, namely convincing the Circuit Court or the Supreme Court that it is their battle to fight. That is because both Gov. Arnold Schwarzenegger and State Attorney General Jerry Brown — charged with upholding the state’s laws and named as defendants in the case — have repeatedly voiced opposition to Proposition 8 and have shown no interest in defending it.

“How can someone who is not covered by an injunction seek a stay for the injunction?” said Erwin Chemerinsky, the founding dean of the law school at the University of California, Irvine, who applauded Judge Walker’s decision. “It’s just such an unusual situation to be challenging the law and not have the state defending it.”

The proponents of Proposition 8 — including the organization known as Protectmarriage.com, which backed the ballot measure — do have status as defendant-interveners in the case. And in an appeal to the Ninth Circuit filed on Thursday, lawyers for the defendant-interveners said they had legal standing because of “their own particularized interest in defending an initiative they have successfully sponsored.”

“California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored,” the lawyers wrote.

That said, the conservatives on the current Supreme Court — considered to be in the majority — “have always been the most restrictive about standing,” Mr. Chemerinsky said.

“And that then makes it hard for these conservative justices, however much they disagree with Judge Walker, to find standing,” he said.

He added, “The irony here is that a doctrine that the conservatives have developed over decades restricting standing in federal cases could now be used to end the debate over Prop 8.”

Judge Walker himself addressed the issue of standing in his opinion on Thursday when he denied a request from the Proposition 8 proponents for a stay of his initial decision, issued on Aug. 4, that found the ban unconstitutional. While saying that the proponents had “organized the successful campaign for Proposition 8,” he countered that it was not their job to enforce it.

“They are not (and cannot be) responsible for the application or regulation of California marriage law,” he wrote.

But Vikram Amar, a professor of law at the University of California, Davis, said the proponents had made more compelling arguments in recent court filings than they had in a two-week trial in January and in their closing arguments in June. In particular, Mr. Amar said, the defendant-interveners had done a good job in arguing that allowing same-sex marriages to proceed during appeals of Judge Walker’s decision could lead to confusion about their validity.

“I do think that if there’s marriages that are entered into and then he’s overturned, I think those marriages are vulnerable,” said Mr. Amar, who opposes Proposition 8.

The next step in the federal challenge to Proposition 8 — which was brought in 2009 by two gay couples who said the law violated their rights to due process and equal protection — will be the ruling by the three-judge panel of the Ninth Circuit, which was given until Wednesday to lift or extend Judge Walker’s stay.

Judge Edward Leavy was named to the appellate court by Ronald Reagan in 1987 and is considered “more moderate than a number of Reagan appointees,” said Carl Tobias, a professor at the University of Richmond School of Law. The other two judges on the panel, Michael D. Hawkins and Sidney R. Thomas, were named to the court by President Bill Clinton and, Mr. Tobias said, “are somewhat more liberal than most Clinton appointees, most of whom I consider rather moderate politically.”

But how those perceived political leanings play with Proposition 8 is anybody’s guess, it seems. And in the end, most legal observers, including the plaintiffs’ high-profile legal team of David Boies and Theodore B. Olson, believe that the only court’s opinion that really matters will be the Supreme Court. An eventual decision on the case could establish or demolish the right of gay couples to marry nationwide.

“They need this to go up the appellate ladder,” Mr. Amar said of Mr. Olson and Mr. Boies’s strategy. “They’re not in this for just California.”