Berman & Asbel, LLP

Prop 8 proponents must show they are allowed to appeal unconstitutionality ruling

The Prop 8 proponents, after losing at trial, may not even be allowed to pursue an appeal on the merits.  The latest big story in the California Proposition 8 constitutionality case, Perry v. Schwarzenegger, is that the U.S. Court of Appeals for the 9th Circuit issued an order which granted a stay on implementing District Judge Vaughn Walker's order that would allow same-sex couples to marry in California beginning tomorrow (August 18).  The stay keeps same-sex couples waiting while the appeal process unfolds.  The 9th Circuit Court also ordered an expedited schedule for the parties to file briefs.

The final sentence of the 9th Circuit Court's order could have large implications for the case.  It reads

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.  See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
Put simply, the Court of Appeals is asking the organizations filing the appeal to justify why they should be able to appeal at all.  Recall that when the plaintiffs filed their suit to challenge Proposition 8, they filed suit against Governor Arnold Schwarzenegger, Attorney General Jerry Brown and other California state officers acting in their official capacities - as was the correct procedure.   However, the state officials, being of the view that Proposition 8 was unconstitutional, chose to not defend against the lawsuit. 

Federal District Judge Vaughn Walker allowed several non-governmental parties to participate in the case as Defendant-Intervenors and it was only they who presented any defense of Proposition 8.  After Judge Walker issued his ruling that Proposition 8 violated the Due Process and Equal Protection provisions of the 14th Amendment of the United States Constitution, it was the Defendant-Intervenors who filed an appeal.   If you examine the text of the 9th Circuit Court's order, while it lists Governor Schwarzenegger and the other officials as Defendants, they are not listed as Appellants because they did not appeal Judge Walker's ruling.  Only the private Prop 8 proponents filed an appeal.

So before this appeal can even proceed on the constitutional merits, the 9th Circuit Court must decide whether the Prop 8 proponents are even parties who can appeal Judge Walker's ruling.  The basis for raising this question comes from a prior U.S. Supreme Court decision,  Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).  In that case, there was a challenge to a law passed by voter referendum in Arizona that declared that state government business could only be done in English.  A bi-lingual state employee who conversed with customers in both English and Spanish challenged the law.  Her suit was successful at the trial court level.  Then Governor Rose Mofford decided to not appeal the ruling but the private groups who had put the English-only law on the ballot filed an appeal.  The Supreme Court found that private individuals did not have a sufficient legal interest in the case in order to properly pursue an appeal.  It was up to the officials of the state to pursue an appeal and in that case, the Governor had decided it was not in the state's interest to do so.  The law's advocates tried to argue that they were analogous to legislators who proposed the law - there have been instances where legislators were authorized by state law to defend a state law from a court challenge.  The Supreme Court disagreed and held these private groups lacked standing.

So, in this case, Perry v. Schwarzenegger,  since the Governor and the Attorney General have decided to not pursue an appeal, the Prop 8 proponents, before they even get to argue the merits of whether Prop 8 is unconstitutional, must convince the appeals court why they get to be heard on appeal at all since they are private parties and not official representatives of the State of California.  If the Prop 8 proponents lack the appropriate standing to appeal, the appeal could be dismissed and Judge Walker's ruling that Prop 8 is unconstitutional would stand.  Of course then the Prop 8 proponents would likely appeal to the Supreme Court over this standing issue.

It is thus conceivable that the Prop 8 case could be decided on this standing question with no national precedent on the constitutional merits.  If a court decides that a party lacks standing to pursue an appeal, it will not decide the underlying question since courts generally will avoid deciding questions of law that are not necessary to resolve the case before them.

As for the many couples who are waiting to marry in California, unfortunately, they will have to wait at least several more months, and possibly longer until this case is finally resolved.

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