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Prop. 8 analysis: If ruling overturning gay-marriage ban is allowed to stand, court must decide who would be bound by it

December 6, 2010 | 11:31 am

Erwin A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Erwin Chemerinsky, dean of the UC Irvine School of Law, says one key question is who would be bound by the district judge's ruling overturning the ban on same-sex marriage, if that ruling is allowed to stand. Here’s an analysis he provided to The Times:

The attorney for the opponents of Prop. 8, David Boies, is being hit hard on a key issue:  If Judge Walker’s ruling stands, who is bound by it? Judge Walker issued a statewide injunction. But the named defendants in the suit were the governor, the attorney general, and Alameda and Los Angeles counties.  The question is whether only these defendants are barred by the injunction or whether it can apply statewide. Mr. Boies tried to argue that the effect of enjoining the governor and the attorney general is to create a statewide injunction, but it appeared that at least some of the judges are skeptical of this.

Judge Smith’s questions to Mr. Boies got to the heart of the argument for allowing supporters of Prop. 8 to have standing: If they are not allowed standing, then no one has standing and that effectively nullifies the initiative in light of Judge Walker’s decision.  The concern is that if millions of people vote for an initiative, shouldn’t someone have standing to be able to defend it and appeal to defend it? The question is if the governor (and attorney general) cannot veto an initiative, why should they be able to do so effectively by not defending the initiative?  As the questioning has gone on, it appears that the judges regard this as a question of California law concerning who under California law has standing to defend an initiative if the governor and attorney general don’t. Judge Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by “certifying” the question to the California Supreme Court.) This raises a possible outcome of today’s argument that no one has yet raised.  It would mean that the case would go to the California Supreme Court to answer the question of California law on who has standing to defend an initiative and then come back to the 9th Circuit.

Judge Smith’s question again gets to a crucial issue: If there is no standing by either the supporters of Prop. 8 or Imperial County to appeal, can the court then consider whether Judge Walker had the authority to issue a statewide injunction?  Mr. Boies said that if there is no standing, then the court has no jurisdiction, and must dismiss the appeal. If the court were to do this, then Judge Walker’s statewide injunction would stand. This again goes to the issue of who should be bound by Judge Walker’s decision since the only defendants were the governor, the attorney general, and Alameda and Los Angeles counties. The judges implicitly were saying that they know that the plaintiffs named only counties which they knew would not defend Proposition 8.  They are troubled by that, but it always is up to the plaintiff to decide who to sue.

The hour of argument on standing showed three judges who are superbly prepared and have thought a lot about the issues.  On the one hand, the judges were concerned that there is no case law authority that supporters of an initiative have standing to appeal to defend an initiative.  On the other hand, the judges were also concerned that if no one has standing, then the initiative is effectively undermined in light of Judge Walker’s ruling. As the argument about standing went on, especially during Mr. Boies’ presentation, it became clear that the judges thought that this may turn on state law:  who does California law allow to have standing to defend an initiative? The judges raised the possibility of sending (certifying) that question to the California Supreme Court to resolve. If the 9th Circuit were to do that, it would not rule on standing or the merits of the constitutionality of Prop. 8 until the California Supreme Court answered that question. Mr. Boies argued that standing to sue in federal court is a matter of federal law and therefore California law is not relevant. But the issue is whether California law can give to the supporters of an initiative an interest sufficient to be able to have standing in federal court.  It is not at all clear how the three judges will rule on that.


Federal appeals panel might return some issues to state Supreme Court

Imperial County's role in defending gay-marriage ban questioned

Judges question whether gay-marriage foes have legal standing

Photo: Erwin Chemerinsky. Credit: UC Irvine