Ari Ezra Waldman | California | David Boies | Gay Marriage | News | Proposition 8 | Ted Olson

Prop 8 Appeal: What We Heard, What We Didn't Hear, What's Next


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 areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing biweekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

9thcircuit Oral arguments in the Prop 8 case took place yesterday in San Francisco. We heard from the proponents of Prop 8, represented capably by Charles Cooper, and a deputy clerk from Imperial County, represented less than capably by Robert Tyler. Then we heard from David Olson and Ted Boies (no, wait, strike that, reverse it, sort of) -- David Boies and Ted Olson -- capably representing marriage equality. Mike, Andy and Corey ran a successful live blog of the hearing, available now here, and asked me and Richard Socarides to join. Check it out and see what happened.

Today, I would like to take a step back, dot the i's and cross the t's, and see what we heard, what we didn't hear and determine what is likely to happen next. In short, as with many appeals, it is hard to handicap. These cases are won on the briefs, you can really only lose at oral argument. We heard tough questions from all three judges to both sides and we saw all attorneys dance around questions they really didn't want to answer. But, we did hear one thing clearly -- at least two judges' questions suggest that they do not think anyone has standing to appeal.

Cooper First, we heard Mr. Cooper argue that the Prop 8 proponents -- a group of California citizens who organized the Prop 8 campaign -- have standing. At one point he admitted that he "had no case" to support his position that individual citizens could take the place of the state, but later he cited a New Jersey case where the attorney general and governor decided not to appeal a ruling they didn't like. What Mr. Cooper ignored was that the people who wanted to take the place of the governor in New Jersey were not individual citizens, but the speaker of the New Jersey legislature and the President of the Senate. As elected members of state government, they are in a qualitatively different position than a simple voter, under current Supreme Court precedent. Mr. Cooper knows this, of course, but his case is weak here.

Then, we heard that the attorney representing the deputy clerk of Imperial County does not know how clerks are put in office, the relationship between his client and the rest of the California government and how that impacts his client's standing argument. A deputy clerk of Imperial County wants to step in to the shoes of Governor Schwarzenegger and Governor-Elect Brown to take over the official defense of Prop 8. But, her attorney, Robert Tyler, could not sufficiently establish for the court why someone in her position -- who answers to a different state authority and who does not even speak for the actual clerk of Imperial County -- should be allowed to do so. Mr. Tyler seemed unprepared -- he did not even know if the clerk is elected! -- and Mr. Cooper was probably thankful he reserved a few minutes of his time for rebuttal.

Reinhardt David Boies had to deal with the first interesting question of the day. Judge Reinhardt noticed a difference between the Prop 8 situation and other cases involving ballot measures and defending laws that state governments decline to defend themselves -- in many of those cases, there was either a state law that allowed someone to take the place of the governor or those wanting to defend the law asked for permission to do so (or, to add the distinction I mentioned earlier, they were actually members of state government, but that clearly cannot apply here). In California, though, we don't know what the law is. These Ninth Circuit judges are primary in interpreting federal law, not state law. So, when a question of state law comes up, the court can certify a question to the state supreme court and ask them, "hey, we don't know what your law is, can you help us?" Judge Reinhardt wanted to know why the court should not just ask California what the state law is in this case.

Mr. Boies was up to the challenge and correctly answered that it really wouldn't matter. Sure, you can go ask, but even if the California Supreme Court said it was possible under state law for the proponents of a ballot measure to stand in the shoes of the governor, "that wouldn't be enough, it would be necessary, but not sufficient." He meant that regardless of the answer to Judge Reinhardt's hypothetical question, anyone seeking standing has to have a real, direct and particularized injury -- some court has to order them to do something they don't want to do. And, that has not happened here. The Prop 8 proponents were not asked to do anything, only the State of California was asked to start giving marriage licenses to same-sex couples. Judge Hawkins picked up on this right away, agreed and tied a bow on it.

David_boies We also heard Mr. Boies take an interesting strategic turn with respect to the scope of Judge Walker's ruling. Mr. Boies said that the injunction against Prop 8 only covered Alameda and Los Angeles counties (where the plaintiffs are from) rather than the whole state. That seems counterintuitive to gay rights advocates and some lawyers who saw the ruling as declaring Prop 8 unconstitutional. But, there are strategic reasons for Mr. Boies to make this decision. He does not want the Ninth Circuit or Judge Walker to be accused of overreaching in any way. Remember the hoopla over Judge Virginia Phillips's worldwide injunction of Don't Ask, Don't Tell. The government's main argument against it is that she overreached and exceeded her authority. The injunction should be limited to her jurisdiction, the government argued. Here, Mr. Boies does not want a similar overreach argument to be made. He wants to give no one a reason to reverse. Plus, he has in his back pocket a governor-elect who is pro-marriage equality. Governor-Elect Brown could take Judge Walker's injunction to state court and ask the state judiciary to extend the ruling to all counties. It seems a bit arcane and a bit unnecessary, but it is always best to suggest to those reviewing a decision you like that it is a really narrow decision.

We also heard in this hour tough questions from all the judges to both sides. Lots of publicity before the argument centered on how conservative Judge Smith was (in a Google search, 8 of the first 10 articles described him as either a "Mormon" or a "conservative Mormon") or how liberal Judge Reinhardt was ("the most reversed judge in history"). But, from his questions, it appeared that Judge Smith was the least likely to grant standing to the proponents and all the judges thought the deputy clerk was just wasting the court's time.

These things are always hard to handicap, but I take this as a strong indication that the panel will unanimously deny standing to the Prop 8 proponents and the deputy clerk of Imperial County.

For analysis of the second hour, which included a discussion of the actual merits of the case, continue reading AFTER THE JUMP...

Mr. Cooper comes back for the second hour to discuss the merits of the case and he did a capable job given the problems with his argument. He made a lot of points -- that Supreme Court precedent from 1972 governs here, that it was rational for California voters to restrict marriage rights and that it did not matter for the proposition's constitutionality that it was taking away a right that had been previously recognized by the California Supreme Court.

It is hard to imagine that Mr. Cooper really thinks those are strong arguments. First, a lot has changed since 1972, especially in the realm of gay rights -- think Romer v. Evans and Lawrence v. Texas. Second, the 1972 case was not about sexual orientation discrimination in marriage; it was about sex discrimination. There is a host of literature on this point (too much to summarize here), but suffice it to say, it makes the cases quite different.

Third, Mr. Cooper's only reason for denial of marriage rights to gay couples was the state's interest in maintaining social structures that foster procreation. But, the Supreme Court long ago divorced procreation from marriage. It did so when it allowed single people the right to contraception; it did so when it granted the right to marry to mixed-race couples; it did so when it granted prison inmates the right to marry; and so on. Ted Olson pointed to "at least 14 cases" where procreation was never considered a rational basis to restrict marriage rights from people who couldn't procreate.

Fourth, Judge Reinhardt was skeptical of Mr. Cooper's suggestion that it doesn't matter that Prop 8 took away a right that existed before. That was the case in Romer, where Colorado voters took away the right for gays and lesbians to seek anti-discrimination protection from city and state legislatures. It existed before, it didn't after. "How is this different from Romer"? Judge Reinhardt asked. Mr. Cooper danced around this point with a fascinating twist. He, unlike every other attorney who argues against gay rights, expanded the holding in Romer -- he made it broader, more all-encompassing -- to suggest that the problem in Romer was not the taking away of a single right (which is what Prop 8 did re: marriage), but "made gays and lesbians strangers to the law" by taking away their access to all rights through the state legislature. This argument has merit as a distinguishing feature of the cases, but it does not mean the cases should come out differently. Romer did not hinge on the quantity or quality of rights taken away, which is Mr. Cooper's point. It hinged on the fact that the only reason for taking away whatever rights Colorado voters took away from gays was that they simply did not like gay people. And, mere distaste for a particular minority group on some moral ground is not a sufficiently rational basis to uphold the law.

Mr. Cooper also kept returning to his emotional argument, most likely because he knows that his legal argument is lacking. Six times, he repeated some form of the belief that an unelected judiciary should not be allowed to overturn the will of the people. Okay. Let's join that debate with the Anti-Federalists if you want, but the mere fact that our judiciary has the power of judicial review -- where courts can invalidate legislation -- means that, as a matter of law, the role of the judiciary is to sometimes reject the will of the people when that will conflicts with the Constitution. Mr. Cooper's argument has no legal merit, but it has emotional heft. It is, after all, what the anti-Judge Walker protests have been about (well, that, and Judge Walker's sexual orientation).

Olson The response from Ted Olson carried few surprises. He made his argument about the evolution of marriage over the years and the inapplicability of the 1972 case Mr. Cooper used. He spent too much time on his own emotional argument -- "these people love each other" came up a few times, for example -- but his legal arguments were spot on. He danced around the question of rational basis, though. The rule is that a law will be upheld under rational basis review if there is any rational reason for it. It cannot be attenuated or not related, but it can be any real rational reason. The implication there is that judge because Judge Walker, in the district court opinion, went through all the given rationales for Prop 8 and found them lacking (with evidence, by the way), there still could be a real, specific rational reason waiting out there, and as long as the court found it, it would be ok to uphold Prop 8. Mr. Olson responded by reminding the court that any rational reason might be the rule, but it cannot be unrelated, it has to be specifically related to the law and it has to actually be furthered by the law. There is nothing further by Prop 8 other than base discrimination against gay people.

But then came a fascinating question. Does a state like California, which has domestic partnerships in an "everything but" marriage regime, have less of a reason to restrict marriage from gay couples than a state that has no union rights for gay couples? Or, does an "everything but" marriage state have more of a rational reason to ban gay marriage than, say, Alabama, which has no sexual orientation anti-discrimination law, no gay state-wide leaders and no civil unions. If you play chess, you can see three steps ahead here and what this means. If a state like California does done "everything but" marriage, it has said that there is really no reason why gays should not have the right to be together and do everything we let straight couples do. We just want to keep the name for religious, moral or tradition reasons. But, those reasons are insufficient to deny access to the institution. On the other hand, a state that has denied all rights to gays has kept its justifications for discrimination. A conservative state has said that gay unions should not be recognized for whatever reason; a pro-gay state has said gay couples should be together, which means they have no reason to keep them apart. It would then be easier for the conservative state to make its rational basis argument. Remember, all we need is one rational reason. When a state goes so far as to say "everything but" marriage, it is pretty much admitting that it sees no reason to keep gay couples apart.

Notice the consequence: If that is the case, then civil unions are a rest stop on the way to gay marriage. It is the slippery slope that Justice Scalia worried about in Lawrence and what opponents of civil unions bloviate about.

But, you can also answer the question the other way. A state that has "everything but" has made a calculated decision about marriage. It is pro-gay, there is no anti-gay bias in this state because it grants gays all sorts of rights. So, the impermissible bases for a law under rational basis -- animus toward gays -- cannot be the reason an "everything but" state has denied marriage to gays. On the other hand, an anti-gay state that has denied gays all sorts of rights is more likely to have done so because it simply dislikes gays and wants to discriminate against them.



When will we hear?

Not for a while. The average time it takes for an appellate court to issue a decision is about 3 months. The Ninth Circuit is particular back logged, so it may be longer.

What are the possible outcomes?

There are many. The court could deny standing. Or, the court could assume standing for the purposes of reaching the merits. If the court denies standing, the prop 8 proponents could give up and that would end the case. But, that is unlikely. They would likely ask for an en banc rehearing (basically, another hearing like we had yesterday, but before about 11 Ninth Circuit judges) and if they lose there, they can appeal to the Supreme Court. If the court assumes standing and decides the merits, that decision is likely to be overturned at the Supreme Court.

Can we marry once the court decides?

No. Only if the Prop 8 proponents are denied standing and then give up will marriage equality come back to California quickly. Even after the Ninth Circuit decision, we would likely have to wait a few days for official entry of Judge Walker's order.

Feed This post's comment feed


  1. Mr. Waldman, thank you for your review, and thanks to all the commenters on yesterday's live blog. It is all very helpful to us.

    Posted by: jpeckjr | Dec 7, 2010 10:46:15 AM

  2. Maybe it's sour grapes because I didn't study there - though as a "Biglaw" lawyer in Manhattan, I've ended up in the same place that many HLS students aspire to work - but it seems so pompous the way Harvard grads always make their alma mater the first thing about themselves.

    Posted by: tcw | Dec 7, 2010 10:55:57 AM

  3. Great analysis. I really appreciate your review and commentary.

    One thing, I think you meant 'dotting "i"s and crossing "t"s' instead of "dotting eyes and crossing tees".

    Posted by: TampaZeke | Dec 7, 2010 11:07:30 AM

  4. "If the court assumes standing and decides the merits, that decision is likely to be overturned at the Supreme Court."

    With this statement, are you referring to the the issue of standing or the case itself?

    Posted by: Eric | Dec 7, 2010 12:36:18 PM

  5. I'm not as convinced as Mr. Waldman that the Supreme Court would rule against same-sex marriage. I'm a constitutional law attorney at a progressive legal organization and I have lots of contact with constitutional law professors, both liberal and conservative. Many (I won't say most, but many) of them believe that Justice Kennedy will vote in favor of marriage equality if the case comes to him. Their analysis rests heavily on his favorable rulings in both Lawrence and Romer, as well as his understanding of his role on the Court as the swing vote. The professors I've talked to believe that Justice Kennedy knows that some day same-sex marriage will be legal throughout America and he takes his legacy too seriously to be always remembered as the Justice that kept gay marriage from happening. They believe he is much more likely to be enamored by the belief that he can be the deciding vote in this era's Brown v. Board, and having that notoriety is too tempting for him to be on the wrong side of history. Just some thoughts.

    Posted by: Anthony | Dec 7, 2010 12:38:00 PM

  6. @anthony: i dont disagree with you at all. i was merely referring to scotus rejecting a 9th circuit decision that assumed standing just so it could reach the merits. scotus would not like that. it would not want to have to reach a constitutional issue if it did not have to. your points, however, are well taken.

    @eric: i was referring to a decision that assumed standing for the purposes of reaching the merits, whichever way they came out on the merits.

    Posted by: Ari | Dec 7, 2010 12:45:38 PM

  7. I can't see standing being denied, despite every legal reason for that outcome. Judge Smith seemed particularly uncomfortable with the Catch 22 of parties who can pursue a claim only so far, but no further. And on some level, I share that discomfort.

    I'm sure Bois is correct, and that these judges well know, the restrictions on Article III standing are well-founded - but this issue is one of those that bucks the law because of, frankly, political considerations. I think these justices are going to overlook the pesky legal barriers to getting at the merits here - and I've come to regret that. Hollow though it would be to have equal marriage rights in California that are not recognized federally, I'm frankly afraid for the current U.S. Supreme Court to get their paws on this one.

    Since I also believe the law would be followed correctly if standing to appeal were denied, that's two reasons to hope the case stops right here.

    Posted by: Zlick | Dec 7, 2010 12:47:00 PM

  8. When is a ruling expected? Days, months?

    Posted by: Bubba | Dec 7, 2010 1:08:17 PM

  9. It seems to me that if no one can be found to have standing, that no one is harmed in anyway material why by a law or proposition being overturned, that even though on the surface it may demonstrate a deficiency in the system, it also proves how the law is completely unsupportable. There's simply no need for it, no matter what it purports to do, because no one is harmed if it didn't exist. Boies had a great answer for why they shouldn't just skip over that issue to get to the meat of the case, because it is such an important legal principle.

    Posted by: spiderseye | Dec 7, 2010 1:13:01 PM

  10. @Zlick

    If these judges ignore the law and simply did what they want for emotional and/or political reasons, it might delay a final outcome for years to come. That is a recipe for prolonged uncertainty, and presumably, nobody wants that.

    I think that's what Boies was getting at in his answer.

    Lets say the Ninth CIrcuit disregards Article Three and assumes standing. Even though there's no legal basis for it. Then they rule on the merits of the case. It gets to the Supreme Court. The justices rule that the Ninth Circuit mishandled the standing issue and refuse to issue an opinion on the constitutionality of same-sex marriage.

    Then we are back to square one, folks.

    Posted by: John | Dec 7, 2010 1:16:26 PM

  11. Agreed, John. Ideally, this should be decided narrowly for California by the Ninth Circuit with standing denied. The Supreme Court could decide this based on Romer, but if it doesn't have to go there, all the better. The Massachusetts DOMA cases can decide marriage for the entire country.

    Posted by: Dave in Northridge | Dec 7, 2010 1:33:13 PM

  12. Hey guys! You've got an extra '.html' in your link off post:

    And that results in a blank page. Please fix the link. Until then reader, remove the extra .html in the url line and you'll get the continuation.

    Posted by: OS2Guy | Dec 7, 2010 1:35:14 PM

  13. I'm glad to see this has brought out the lawyers in the comments. There is no consistent case law for deciding standing, and with similar laws in over 30 states, the issue will need to be resolved one way or the other. The courts have tangled themselves up in knots on a variety of issues, resulting in rulings that vary by circuit, a form of injustice on constitutional matters if you believe in such things. If the 9th dodges the question then SCOTUS will find a reason to grant standing and then perhaps overturn. If the courts don't take up the issue, a ruling only applies to the ninth circuit, the political pressure will be extreme going into 2012.

    Posted by: anon | Dec 7, 2010 1:44:58 PM

  14. I agree with the comments that the panel won't deny standing. Although I think they will unanimously deny standing to Imperial County, they will find standing for the Proponents without going through the California Supreme Court.

    Reinhart is aware of the landmark status of this case - he's not going to pass up the opportunity to rule on its constitutionality should the California Supremes say no standing. Moreover, it is clear that all judges were worried (as they should be) that an elected official could effectively nullify a Proposition in this matter.

    I think the outcome will be:

    3 votes to deny Imperial County standing, 3 to recognize it for the Proponents, and - going out on a limb here - 3 to strike down Prop 8. Two of those votes will be Reinhart and Hawkins on the "you can't vote to take away the constitutional right" rationale. Smith will file a separate concurrence stating that he doesn't see a rational basis for giving everyting but marriage (in effect answering what Ari noted was a fascinating question by saying that the state that gives more rights to gay couples has fewer justifications to keep them from outright marriage - which is an interesting but potentially disadvantageous argument if made the national standard or even the rule of law in the 9th Circuit).

    This is a fascinating case and it's kind of fun to predict potential outcomes!

    Posted by: Jorge | Dec 7, 2010 1:45:51 PM

  15. And what if the ruling follows Romer, i.e., finds it unconstitutional to vote away a right that previously existed, but doesn't reach the core constitutional question of whether denying that right is itself unconstitutional (whether taken away by vote or never recognized at state level in the first place).

    It seemed to me that Reinhardt in particular was looking for that narrow way out, and it would seem a route appealing to all the judges. That would have the same resulting effect as denying standing, i.e., equal marriage rights in California only.

    So I think that's going to be the effect of this court's ruling, whether it's on standing or the merits.

    Posted by: Zlick | Dec 7, 2010 2:16:40 PM

  16. Kennedy was ahead of his time with Lawrence and Romer and I suspect he will do the same if this case makes its way up to SCOTUS. Even conservatives realize that same-sex marriage is banging on America's door and will be let in soon enough. As legacy is everything to these Judges/Justices, I suspect both the 9th Circuit and 5 Justices on SCOTUS will not want to be on the wrong side of history with this one... a la Strom Thurmond. Just my opinion, of course.

    Posted by: MB | Dec 7, 2010 2:17:58 PM

  17. this is great....I'm learning a lot about your constitutional law arguments by just reading you comments......

    Posted by: JackFknTwist | Dec 7, 2010 2:47:36 PM

  18. Another lawyer here:

    I agree with Waldman that the panel will deny standing. There are very good policy reasons why this outcome is wrong and unfair, but you can't get around the SCOTUS's ruling on this. Also, Reinhardt seemed interested in finding a narrow hook on which to hang a decision. Of course, Reinhardt being Reinhardt, he could well go and issue a lengthy gratuitous opinion as to the unconstitutionality of Prop 8, but it would all be dicta. Incidentally, if we win on standing, I would predict another Prop 8 attempt in the future, with a provision requiring the AG and/or the governor to defend it to the full extent.

    I thought Olson was a bit scattered in his presentation and bit less effective than I would have expected. Boies takes the prize for best argument. The Imperial county lawyer will need years of therapy to recover. The SF lawyer spoke only briefly, but made a very effective point about the irrationality of depriving gays of the word marriage while consistently affording them all of the substantive rights.

    On that last issue, it seems that CA's Domestic Partner law could help the panel determine that Prop 8 is unconstitutional, should they reach that issue. However, if this issue is prominent in the decision, then in the long run, it could pose a political problem for gays. The idea that any recognition of same sex relationships paves the way for marriage has been used to oppose civil unions and even a modest law in RI to permit gays to make burial decisions with respect to their deceased partners. If the panel focuses on this, you can be sure that opponents in all future civil union fights will cite it as a reason to deny gays any recognition whatsoever.

    Posted by: James | Dec 7, 2010 3:49:10 PM

  19. @James: I think that CU's/DP's are essentially already viewed by conservatives as the slippery slope. That's why Lingle vetoed in Hawaii, as well as Carcieri vetoing the funeral bill you mentioned in RI. I would worry more about that kind of ruling's effect on a state like Iowa, where the voters could potentially reverse the state Supreme Court's pro-equality decision with no CU/DP structure to revert to.

    Posted by: Bruno | Dec 7, 2010 4:28:18 PM

  20. OK< that's what I thought from jump street that a court COULD decide that California's DP law is already the remedy for this situation and uphold Prop 8 BUT that could potentially tear down the constitutional amendments that ban same sex marriage an any "substantially similar" legal structure.

    Posted by: Chitown Kev | Dec 7, 2010 7:11:06 PM

  21. TCW: If it's pompous for Mr. Waldman to brag about having attended Harvard, then it's equally pompous for you to brag about working at a big, Manhattan law firm.

    Posted by: Adam | Dec 7, 2010 10:31:03 PM

  22. @TCW: can you please explain your comment about HLS grads making it "the first thing about themselves"? Are you talking about his brief resume/intro? Well--doesn't one always put where one went to school at the head of the list of qualifications? What would go ahead of that?

    I think you're right: sour grapes. gettagrip.

    Posted by: Danny | Dec 8, 2010 9:27:06 AM

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