Ari Ezra Waldman | Federal Prop 8 Trial | Gay Marriage | News | Proposition 8 | Vaughn Walker

Prop 8: Will the Real Appellants Please Stand Up


The marriage equality community is bustling with both frustration and excitement, like a drunk girl at a party.  As you know, a three-judge panel of the Ninth Circuit today issued an order staying -- postponing or delaying -- the implementation of Judge Walker's August 4 order to give the Prop 8 proponents time to appeal.  

Ninthcircuit The three judge panel specifically asked the parties to address the standing issue on appeal and while such specific instruction does happen, it is certainly not the default in most circuit courts of appeal.  It means that this issue is front and center on the judges' radar. This panel -- while not necessarily the panel that will hear the merits of the appeal -- is curious as to how a party not covered or affected by an order could have the right to appeal such an order, i.e., having "standing" to appeal. Certain legal experts see this focus as a victory for the advocates of marriage equality. If the Prop 8 proponents do not have standing to appeal, the case is virtually over and Judge Walker's opinion will bring a second dawn of marriage equality in California.  That's great! 

But, if that is where this case ends, marriage equality will extend no farther than California. The state would be added to the list of states granting gay couples the same rights as heterosexual couples, but the case's precedential weight would be limited. Judge Walker's decision would have no effect on Washington State and Oregon and the other states in the Ninth Circuit territory. However, if the Ninth Circuit accepted standing for the Prop 8 proponents, an appellate decision affirming Judge Walker's order could impact the entire Ninth Circuit.  It would also weigh heavily on judges throughout the country as more persuasive. A district court decision, no matter how well-reasoned and air tight, is not as much of an influence to other federal courts addressing this issue than an appellate court decision.

Here are a few ways this can go (there are many others):

- Ninth Circuit denies standing to the Prop 8 proponents.  Marriage equality for California!

- Ninth Circuit accepts standing, hears the merits on appeal.  Affirms Judge Walker's opinion.  Marriage equality for California and, perhaps, the entire Ninth Circuit territory.

- Ninth Circuit accepts standing, hears the merits on appeal.  Vacates (overturns or sends back or says, "No way!") Judge Walker's opinion, Prop 8 and its ban on same-sex marriage stands.

What do you think? Do we want the Prop 8 proponents to lose on standing, securing a win for marriage equality in California? Or do we want the appeal to go ahead to a merits hearing and run the risk of losing on the merits at the Ninth Circuit or the Supreme Court?

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His area of expertise are criminal law, criminal procedure, LGBT law and law and economics.

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  1. The big possibility you left out is:

    - Ninth Circuit denies standing to the Prop 8 proponents and finds that, because no defendant with standing defended the case at the district court level, there was no Article 3 case or controversy, and they vacate Walker's ruling. Depending on how the elections turn out, Walker either enters default/summary judgment for the plaintiffs, or conducts a whole new trial.

    Posted by: Kevin | Aug 16, 2010 9:47:21 PM

  2. I'm torn on the question. All I've ever wanted is for the law and the Constitution to be followed, wherever they may lead.

    If the law has to be bent beyond recognition to grant the Prop 8 Proponents standing to appeal, then I suppose I think the right thing is to stop the case in California.

    But of course, I want the appeal to go on, and I want justice in this matter for the western states covered by the Ninth Circuit, and for all Americans ideally.

    It seems a stay pending appeal is pretty commonplace, but did the 3-judge panel of the 9th circuit already begin with ignoring the legal requirements for a stay? If they've already fudged the law just to hear the case, I'm already unhappy with the way things are going.

    Posted by: Zlick | Aug 16, 2010 9:50:41 PM

  3. Love for the court to find standing and rule on the merits of the case-finding for the plaintiffs. It would be a shame for Walker's findings of fact and such well-reasoned conclusions to not be used to finish this issue.

    Posted by: Gavin | Aug 16, 2010 9:56:49 PM

  4. Let my country walk its talk of being the leader of the free world and catch up to other countries that have proven that all their citizens are created equal. Take it all the way to the supreme court and let's see what kind of country we live in... for the time being anyway.

    Posted by: David | Aug 16, 2010 9:58:26 PM

  5. Kevin:

    That's really not an option, given that a trial court's decision to allow intervention is reviewed for abuse of discretion. Also, there would have to be some sort of prejudice claimed by a party, and the only party that could claim it would be the intervenors themselves. It isn't going to happen.

    Posted by: Nate W. | Aug 16, 2010 10:03:35 PM

  6. Based on how amazing our side did, how poorly the Prop 8 guys did, and my own inability to find any logical reason at all that Prop 8 should stand, I really want this to go through all the way to the Supreme Court.

    I would echo Zlick's concern about bending the law to recognize their standing, but they did bring up a good point: shouldn't those behind an initiative be able to defend it in court? I don't know enough about this and its history to give an answer myself.

    Posted by: ravewulf | Aug 16, 2010 10:05:16 PM

  7. Part of me wants the district court to rule they have standing and let this go all the way through the appeals process.

    Another part of me really wants the court to rule they have no standing, as I'm afraid that the Court won't rule in our favor. Kennedy is a swing vote, but that doesn't feel safe enough to me. (I'll have to review his civil rights records fully before I make final decision though.) With people like Scalia on the court using terms like "the homosexual agenda" and the conservative court willing to overlook the most fundamental rights in order to further their antiquated views of the consitution, I'm nervous that the case going before them would push us back decades if they sent the precedent that wasn't in our favor.

    Posted by: Joe | Aug 16, 2010 10:06:32 PM

  8. I appreciate the commentary (and the work that goes into it), but I could do without Ari's occasional kitschy tone as a means of communicating legal terms/concepts to us laymen.

    Posted by: TonsofT | Aug 16, 2010 10:14:02 PM

  9. I think the precedential value of marriage equality in California exceeds the value of legally extending the jurisdiction in which marriage equality prevails to the whole of the Ninth Circuit, given the substantial risk that the Supreme Court will overturn Perry if it has the opportunity.

    It might be more productive to litigate the validity of California marriages on the basis of full faith and credit as a way of extending their reach judicially.

    Posted by: Rich | Aug 16, 2010 10:23:26 PM

  10. Here's a question I haven't seen anyone address: let's assume the 9th Circuit rules in favor of the plaintiffs and there is no appeal to the USSC. Judge Walker's decision would then be the law of the land in California.

    What happens, then, when a same sex couple married in California (or Massachusetts or Connecticut for that matter) moves to a state where there is a limitation on marriage to opposite sex couples? How would the new state recognize or not recognize the legally binding relationship from the other state? Would one of these affected couples end up being the "test case" that goes to the USSC and establishes marriage equality nationally?

    Posted by: John | Aug 16, 2010 10:23:28 PM

  11. People who want this to go to the Supreme Court should be careful what they wish for. There is no telling that this would make it there in the next 3 years. Kennedy is 74 years old. And even if he is there, there is no guarantee that he will side with the opponents of Prop 8. I love the case too and it is very tempting.

    Also the first comment here is wrong. The opponents of Prop 8, who did have standing, brought the case to the District Court. Finding that the appellants here, the supporters of Prop 8 have no standing, does not affect the lower court's decision at all. It ends the case and Prop 8 is overturned (unless there is an emergency appeal for cert to the Supreme Court on the standing issue, which the Court could accept, establish standing and send back to the Ninth Circuit - which I think would be the most likely result and would give some insight into how Kennedy feels about this case).

    Either way, it's going to be years before this gets to the Supreme Court. And by 2012, CA could overturn Prop 8 and make this entire matter moot. For now that might just be the safest thing for securing marriage equality in CA, no matter how much we'd like to see the higher courts take this issue on.

    Posted by: Caleb | Aug 16, 2010 10:24:38 PM

  12. Off to fucking SCOTUS, I say.. This shits gotta end at some point, for all of us, once and for all!

    Posted by: Joey | Aug 16, 2010 10:25:17 PM

  13. Like a drunk girl at a party! I love your analyses, Ari. I think you're an extremely capable lawyer and intelligent, and you know that you couldn't be a writer. That's a compliment, kiddo.

    Otherwise, very informative. Thank you, Ari.


    Posted by: TANK | Aug 16, 2010 10:27:55 PM

  14. @Joe.. You have a good point... And Dear Ruth is going soon.. We better pray we get Kagan or better!

    Posted by: Joey | Aug 16, 2010 10:29:38 PM

  15. "The marriage equality community is bustling with both frustration and excitement, like a drunk girl at a party."

    Really??? you're actaully going to start an essay on equality with a sexist metaphor worthy of the lamest of frat boys? And it doesn't even really make sense either. Seriously, I didn't (and won't) even read anything you wrote after that.

    Posted by: gaylib | Aug 16, 2010 11:01:15 PM

  16. I fear the precedent of allowing proposition proponents of any sort being granted the status to intervene on appeal as if they represent the state. They represent their own self-interest. They are not sworn to uphold the state constitution. People need to be educated on how our legal system and civil rights actually work. Granting them status to appeal validates their right to bring our civil rights to a popular vote, which should never be allowed.

    Posted by: spiderseye | Aug 16, 2010 11:05:02 PM

  17. To SCOTUS! This case so obviously lays bare the inequality we face as homosexuals that no rational court could possibly overturn Walker's judgment. I would venture that many of the conservatives on the Supreme Court might well come down on our side. And if they don't, let those justices squirm for the rest of their careers with their failed jurisprudence.

    Posted by: Tom | Aug 16, 2010 11:09:19 PM

  18. I think Ari's analysis, while accurate, is painting far too rosy a picture. We out here in California are hearing a lot of rumbling on blogs and legal websites that the very fact that the 3-panel 9th Circuit judges granted the stay indicates that the intervenors (proponents of Prop H8) will be able to find a legal loophole to give them standing, and that the 3-panel judges found in their appeal a plausible argument for overturning Judge Walker's ruling. . .otherwise the case would have ended today. It's widely held here in CA that today's ruling is very bad news for our side. What is your opinion and analysis Ari? We're hearing very conflicting legal rhetoric out here.

    Posted by: Keith | Aug 16, 2010 11:12:44 PM

  19. hasn't the 9th already implied standing to the ban proponents by allowing their appeal to go forward and putting another stay on walker's decision ? if the court should, eventually, decide that they did not have standing..and there is precedent both ways on that issue..their damage will already have been done and it would bring into question the entire walker trial which could end up vacating his ruling and putting us back to square one with prop 8 solidly in place. we have lost sight of, and even walker skirted it in his decision, the central issue which is not whether gay people should marry or how good of parents they are, but whether the electorate has the right to strip fellow citizens of their rights by referendum. the people behind prop 8 presented no evidence at trial beyond saying that they just don't like the idea of gay people marrying, and yet they are prevailing by being allowed to go forward with appeals that are preventing further marriages in the state. we won one battle, but they are winning the war.

    Posted by: el polacko | Aug 16, 2010 11:17:49 PM

  20. Keith, El Polacko:

    This is not how the federal courts work, nor was the decision today at all indicative of how the Ninth Circuit will ultimately rule. The question of a stay does not have anything to do with the legal merits of the case, or whether intervenors have standing to bring the appeal. Whether the stay was granted or denied, standing and merits would be decided after a full briefing and oral argument. That's how these things work.

    Posted by: Nate W. | Aug 16, 2010 11:24:56 PM

  21. Thanks everyone for your comments and ideas.

    @Keith: I'd rather keep my own opinion out of discussion for the moment and allow our fair readers to chime in. Suffice it to say that the mere fact that a stay pending appeal was granted has no impact on the merits appeal or the standing issue. The case could not have ended today because even if the Ninth Circuit did not grant a stay pending appeal, the appeals process would have continued. I neither think today's ruling is bad nor do I think it's widely held that today's ruling was bad for marriage equality advocates. This order does not speak to the merits, but it does show that standing will be first and foremost on the minds of the Ninth Circuit's judges.

    @el polacko: granting a stay pending appeal does not imply a recognition of standing for the prop 8 proponents. in a simplified way, in order to have standing, you have to show that you will actually be directly harmed if the appellate court doesn't rule your way. an order holding off on same-sex marriages does not address that. putting the stay in place is often just a matter of respect for the system and its process. a way of saying, let's let everything stay as it was until we have a final answer. thanks for your comment!

    Posted by: Ari | Aug 16, 2010 11:27:29 PM

  22. ari: thanks for your thoughtful analysis. my question is this: should the november california gubernatorial race give us meg whitman and a republican AG, will that have any affect on what goes on in the ninth circuit?

    Posted by: psgoodguy | Aug 16, 2010 11:49:49 PM

  23. PSGoodguy:

    Appeals have to be filed within 30 days from the date of judgment. It's a jurisdictional requirement that the courts cannot waive. If the intervenors have no standing to appeal, the state would not later be allowed to file an appeal on the theory that they can piggyback on the intervenors' filing. Someone with standing has to appeal within thirty days or there is no jurisdiction for the appeal and it must be dismissed.

    Posted by: Nate W. | Aug 17, 2010 1:15:49 AM

  24. While I usually very much appreciate Ari's commentary, I find this one really lacking. I'm not a lawyer, so what I've appreciated in his previous comments is an analysis of the issues involved that is calibrated through a perspective of someone who actually has a vested interest in the outcome. His comments today were just sort of like: "Here are the facts, guys! What do you think?" That's not helpful, since most of us can follow the facts but benefit from his guidance/analysis.

    Posted by: Gayprof | Aug 17, 2010 1:59:33 AM

  25. Hey Ari...or anyone else,

    What would happen if the 9th circuit ruled in our favor, but CA would overturn Prop 8 in 2012, before the case is argued before SCOTUS? I'm assuming SCOTUS would drop it, but would the territories under the 9th still be obligated to follow the 9th's ruling?


    Posted by: bostonian | Aug 17, 2010 2:12:39 AM

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