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.


  1. Kevin says

    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.

  2. Zlick says

    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.

  3. Gavin says

    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.

  4. David says

    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.

  5. says


    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.

  6. ravewulf says

    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.

  7. Joe says

    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.

  8. says

    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.

  9. Rich says

    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.

  10. John says

    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?

  11. Caleb says

    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.

  12. Joey says

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

  13. TANK says

    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.


  14. Joey says

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

  15. says

    “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.

  16. spiderseye says

    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.

  17. Tom says

    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.

  18. Keith says

    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.

  19. el polacko says

    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.

  20. says

    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.

  21. Ari says

    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!

  22. psgoodguy says

    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?

  23. says


    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.

  24. Gayprof says

    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.

  25. bostonian says

    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?


  26. Ninong says

    If the three-judge panel of the 9th Circuit hadn’t granted the stay, wouldn’t the H8ers have filed an emergency appeal with the SCOTUS requesting the stay? If so, would that have been good or bad for our side? Would that have moved the case to the SCOTUS any quicker?

    If the case actually gets to the SCOTUS and they take it, then a ruling in our favor would make same-sex marriage legal throughout the country, right?

  27. mpb says

    I don’t see any issue with the prevalent analysis of “standing” in this argument as pertains to the “proponents”. I’m not sure why the Circuit decided to take a look, but the Defendant declined appeal and “proponents” have no standing whatsoever.

    This ruling should legally end with Walker. We’ve already seen the dramatic effect it has had on public opinion. And any victory that brings this up to the circuit or federal level is hollow if it ignores the fundamental jurisprudence involved. The whole idea is that we are already protected by fundamental rights, not strained interpretations.

  28. Javier says

    People who want this to go the US Supreme Court here are shockingly naive about the likelihood that it will uphold Walker’s Perry decision. In Lawrence v Texas, Kennedy all but said that his sodomy decision was not an endorsement of a constitutional right to marriage. He seemed rather offended by Scalia’s taunting that his opinion in Lawrence would be used to declare a constitutional right to same-sex marriage. Kennedy emphasized that a right to not be arrested for private consensual sodomy is entirely different than granted special privileges and status (marriage) to same-sex activity/relationships.
    I and many other experts strongly doubt Kennedy would declare a constitutional right to same-sex marriage. He might want to dodge the issue altogether, but he probably does not want to find it to be constitutional right. We will be lucky to escape Supreme Court review because it would set us back many decades, perhaps worse than Bowers v Hardwick.

  29. jpeckjr says

    I’m enjoying this discussion, and learning a good bit about how courts work and how lawyers who do litigation have to strategize. I don’t know what’s best for supporters of marriage equality like me. I do know that all our speculation about outcomes is just that — speculation. Not saying that isn’t fun, just that it’s speculation.

    My best advice right now is: don’t sign a contract with the caterer before all the judges have finished ruling.

  30. Kyle says

    While some here have voiced support for the case to move up to the Supreme Court, it is important to note that it may not even grant cert on Perry. SCOTUS is notorious for avoiding questions on social policy still on debate in public forums for fear of pre-empting the legislative process. With the exception of the Warren Court of the 1950s and ’60s, the risk-averse Court has typically been a step behind general public sentiment on social issues.

    Given that public support for same-sex marriage is gradually growing, but not quite enough to settle the public debate going on in this country, SCOTUS may simply deny cert on Perry and let whatever decision arises from the 9th Circuit stand.

  31. Glenn says

    I was originally with the crowd who felt this suit was ill-advised, because of the likelihood that it would lead to a bad Supreme Court decision that would stay with us for a generation (like Bowers). As thrilled as I am with Walker’s ruling, I have not seen anything to make me change that view. So the best thing now, in my view, would be for the 9th to dismiss the appeal for lack of standing and for the Supreme Court to deny cert.

    By the way, someone earlier suggested the possibility that there was no case or controversy before Walker, because the CA officials didn’t defend the statute. That idea was apparently suggested by the intervenor-appellants, but it’s just wrong. While CA didn’t defend Prop 8, it was clear that they were enforcing it, and would continue to do so (in part because the CA Supreme Court said it was valid). Their enforcement, i.e., preventing the plaintiffs from getting married, is without question a live controversy that was sufficient to support federal jurisdiction.

  32. TampaZeke says

    My question is one that no one can answer.

    What happens if this ends with Walker’s decision not being appealed? Where do Olson and Boies go from there? Do they take their well reasoned case to another state and start the process over again? Do they find a case, in a state where appellants WOULD have standing so that the case could proceed to SCOTUS? Unfortunately there is no more friendly court in the land for accomplishing this than the 9th circuit.

    If it’s determined that Prop 8 proponents have no standing I’d like to hear Olson and Boies immediately call a press conference to tell us what their next move will be in expanding justice to ALL gay people, all the way across the country.

  33. anon says

    O&B chose California because it is a high profile case within the ninth circuit–the circuit most likely to favor gay marriage equality. Judge VW was ostensibly chosen at random by the court system to hear the case, but in all likelihood, O&B knew fairly well that he or another gay friendly judge would be selected for the case, also that the appeals court panel in SF would be gay friendly. Classic trial court tactics of the first order. With 40+ states opposed to gay marriage, SCOTUS may be determined to uphold federalism and rule against the ninth, even by forcing it to grant standing to do so, just as they forced TVs out of Walker’s courtroom. Were there only 10 states opposed to gay marriage then they’d probably be eager to make it a national right. However, if there are 5 votes to make it a national right then they may also wish to grant standing to uphold the ninth–even though the ninth gets its rulings struck down regularly at the SC.

  34. Ari says

    Thanks to everyone for your comments! I hope you’re enjoying the discussion.

    A few answers to some great questions:

    @Ninong: If the 9th Circuit had not granted a stay, the Prop 8 proponents could have gone to the Supreme Court to ask for a stay. The justice who is in charge of the 9th Circuit would have heard an emergency motion for a stay and would have decided yes or no. It would not have taken the substantitive issues of the case to SCOTUS any sooner. Just like with the 9th Circuit. The panel that issued the stay did not hear the merits of the case; instead, they read briefs arguing that the Prop 8 proponents had met the requirements for a stay. Nothing more.

  35. Ari says

    @John: If same-sex marriage becomes a reality in California, as it is in other states, and a married couple seeks to have its union recognized in another state, that would create a different case with different legal questions. Unless the Supreme Court eventually decides that all bans on same-sex marriage are unconstitutional at once, a state by state approach would be necessary to argue that, for example, the “full faith and credit” clause of the Constitution requires that one state recognize a valid marriage performed in another state. However, that clause was gutted of much of its power long ago and the likelihood of success under that theory is low unless there is such a groundswell of states that recognize same-sex marriages (either performed in other states or performed at home) that it is a difficult strategy to begin with.

  36. Ari says

    @psgoodguy: That is an excellent question. While November is a long way away and would be after the date when certain filings are due before the Ninth Circuit, thus making it unlikely that an AG that opposes same-sex marriage would be allowed to file, there is a procedure known as “relation back.” It is mostly used for Complaints (in fact, I’ve only heard it used for Complaints), which are the documents that begin a lawsuit in a lower court. They outline what allegedly happened and what the plaintiff wants. Complaints have to be filed within certain time limits from the date of injury, or the date that something happened creating the problem. I’ve never seen it used on appeal, but I have seen — and argued against in practice — a few parties who sought to use the “relation back” doctrine on substantive motions and other trial level issues. It would allow a late party to hitch a ride on a timely filing because the late party should have been the one to file in the first place. It happens most often in a corporation. Shareholders can file a derivative suit against, say, a naughty corporate director within the statute of limitations of the director’s fraud. If the corporation decides the suit is a good idea, but its after the limitations period, it can file its own complaint and a motion to relate back to the timely filed shareholder complaint for limitations purposes. The theory is that all suits in the name of the corporation belong to the corporation no matter who files it.

    That’s a bit archane, but you see the similarity. The Prop 8 proponents are now standing in for a state that won’t do anything.

    But, as I said, I have never seen that argument raised on appeal or for the purposes of filing a timely appeal. The rule in the Federal Rules of Civil Procedure allows this for Complaints, nothing else. An anti-same sex marriage AG could make that argument, but he or she would lose.

  37. Ari says

    @Bostonian: Good question. If another ballot initiative overturned Prop 8 and re-introduced marriage equality in California AFTER the Ninth Circuit ruled, but before SCOTUS ruled, the case would be “moot”. There would no longer be a case for SCOTUS to rule on — because the plaintiffs can marry in California — so there would be no “case or controversy” for SCOTUS to rule on.

    If the Ninth Circuit had already ruled in favor of marriage equality and extended its ruling to the entire Ninth Circuit, that ruling should stand, as I understand it. That is, there was a case or controversy at the time the Ninth Circuit rules, so there would be nothing to disturb its ruling. If they had ruled against marriage equality and overturned Judge Walker’s opinion, the ballot initiative would bring back marriage equality in California.

  38. Luther says

    Ari, in your response to John’s question re recognition of valid same sex marriages by states that do not permit such marriages, you say: “Unless the Supreme Court eventually decides that all bans on same-sex marriage are unconstitutional at once, a state by state approach would be necessary to argue that, for example, the “full faith and credit” clause of the Constitution requires that one state recognize a valid marriage performed in another state.” You also say that the full faith and credit clause was “gutted of much of its power long ago.”

    Have you heard of DOMA? Article IV Sec. 1 of the constitution gives Congress the authority to determine the effect of the full faith and credit one state must grant to another’s acts. Congress used that authority when it enacted DOMA, which provides in Section 2 that no state needs to recognize a same sex marriage performed in another state. Maybe your point was that an equal protection argument could be made to challenge section 2 of DOMA, just as the successful MA cases challenged section 3 as a violation of the equal protection clause. But it appears that you just missed the issue or didn’t think it through before going clickety clack on your keyboard. This stuff is important and needs to be addressed with a certain amount of seriousness, knowledge, and intelligence. There is history here. There is case law on point. You can’t just wing it. It’s not fair to Towleroad’s readers and it makes you look foolish.

  39. JoeInSF says


    It doesn’t matter what we want anymore…the dice have been rolled and we will have to wait and see where they land. I, for one, am very happy to have Olson and Boies as our skilled gamblers.

  40. borisg says

    Once Mr. Alito convinced Mr. Thomas to convert to Roman Catholicism, we garnered our first ever majority of Roman Catholics on the SCOTUS. President Obama’s first appointee to the court is RC and now we have a super majority of Roman Catholics. I am curious to see if any SCOTUS ruling on either Gay rights or abortion can be free of the Pontif’s influence, or will the court be able to rule on the constitutional merits of the case free from papal tyranny? Remember the present super-majority of Roman Catholics on the court is a first ever scenario in the US. Its ironic since I’ve always considered our constitutional separation of church and state to be a rebuke to Roman Catholicism and its pesky assertion of its supremacy above all merely human governments.

  41. Ari says

    @Luther. Thank you for your comment. With all due respect, I hope we can keep all comments professional rather than personal.

    An extensive conversation about the connections between DOMA, Prop 8, marriage rights, equal protection and the full faith and credit clause isn’t really appropriate in the comments section. Maybe we will have a full analysis of it in another post. And your constructive comments will be greatly appreciated! I don’t think I missed anything, especially since all I said was “for example…” This was just one issue that might come up. The arguments made by Judge Tauro also may come up. My apologies if you think I missed something.

  42. Tom says

    Ari – Isn’t this case somewhat unique in that Prop 8 actually took away a right that had been established in California by a ruling of the California Supreme Court?

    Even if this ruling is eventually applied to the entire Ninth Circuit, there doesn’t seem to be another state where this condition exists.

  43. Ari says

    @Tom: That’s very true. This may be a reason that a favorable 9th Circuit ruling for marriage equality may not extend to all the states in the circuit. It’s a unique situation that may restrict a decision to its facts.

  44. Glenn says

    I find it difficult to see why the fact that the CA Supreme Court had previously interpreted the CA constitution to forbid marriage discrimination renders this situation unique. Either such discrimination is repugnant to the Equal Protection Clause or it is not.

  45. Robert C. says

    If the Ninth Circuit finds that the proponents lack standing and dismisses the appeal, the proponents will certainly appeal that determination to SCOTUS. This is where the composition of the court may actually benefit the opponents of Prop 8, as the conservative block on the Court has interpreted the standing requirement quite restrictively.

  46. says

    I dont think all the non-Californians who donated to AFER want the decision to stay in California. Besides, if the Ninth Circuit says No Way, then cant AFER appeal too?

  47. Jerry says

    Got room for ona few more questions? There’s a new uncertainty in the form of an ambitious LA District Attorney, Steve Cooley. He will oppose Kamala Harris for CA District Attorney, and has announced that he will defend Prop 8. I know it’s too late for him to play a role in the Ninth Circuit Ct decision process, but if SCOTUS decides to allow an appeal, what role, if any could Steve Cooley play? Would he have standing to represent CA against the opponents to Prop 8? If the Ninth Circuit CT decision is favorable to us, is there any way that SCOTUS could remand the original decision back to Judge Taylor for a new trial, with Steve Cooley given standing to represent the people of CA?