Ari Ezra Waldman | California | Gay Marriage | News | Proposition 8

The Ninth Circuit's Prop 8 Ruling: What To Expect Tomorrow? (UDPATED)



The Ninth Circuit will issue a much-anticipated opinion in the Prop 8 case, Perry v. Brown, tomorrow. Avid readers of Towleroad will remember that we have followed this case closely every step of the way (including here, here, here, here, here, and here). For a quick refresher, MetroWeekly's Chris Geidner has a helpful summary of where we've been to date. Today, I would like to preview the decision, answer some questions, and prepare us for the momentous events of tomorrow.

Prop8What is at issue? What is not at issue?

Having dispensed with the motion to release the videotapes of the trial last week, the Ninth Circuit now seems prepared to issue a comprehensive decision on at least two (but mostly likely three) questions.

First, does Protect Marriage, as citizens of California responsible for Prop 8, have standing to defend Prop 8 in federal court? If you recall, the Ninth Circuit asked the California Supreme Court to weigh in on this issue, and that court decided that, given the breadth and importance of the initiative power in California lore, Protect Marriage does have standing as a matter of state law. That is, if we were in California state court, Protect Marriage could step into the shoes of the State apparatus if that State refused to defend a duly enacted law.

But, standing under state law is a necessary, yet insufficient basis for standing under federal law. Given the Ninth Circuit's broadly stated willingness to rely on the California Supreme Court's decision, it is more than likely that the court will either assume federal standing or accept standing as a matter of federal law. The latter option would, in my opinion however, be wrong on the law; the former option would also be bad law, given the importance of standing: if you don't belong here in the first place, how can we render a decision?

Second, if Protect Marriage has standing, should Judge Walker's decision declaring that Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution be affirmed? This question is the heart of the matter, the merits of the case, concerning the constitutionality of California's discrimination against gay couples.


If you read the question again, you might notice the careful choice of words: this appeal is not just about the constitutionality of Prop 8; more accurately, the appeals court is passing judgment on whether Judge Walker erred when he declared Prop 8 unconstitutional. The difference matters. From Day 1 of Civil Procedure and Federal Courts, law students know that it's a lot easier for an appellate court to affirm a decision below than reject it. This is what makes this case so important. 

Olson_boiesThe psychological, sociological, and historical evidence that the American Foundation for Equal Rights (AFER) and its legal team of Ted Olson, David Boies, and a host of others so skillfully offered at trial was left unanswered by Protect Marriage at trial. In fact, Judge Walker stated numerous times that this or that factual finding was offered unopposed, with no evidence to counter its veracity. So, in the Perry case, the record shows all the psychological evidence that shows that gay parents make excellent parents, that their children grow up to be just as productive as the children of heterosexual parents, and that the state's other justifications for a ban on same-sex marriage have no foundation in facts. The record is also devoid of any evidence contradicting the conclusion that marriage is not about procreation, but about an enduring and emotional union of two people in love. 

A federal appellate court is limited to the record before it. It cannot make decisions based on outside information or anything not raised at trial. The court also has to approve factual findings unless they are "clearly erroneous," and while George Rekers and Tony Perkins and their ilk might disagree with the findings, the findings are certainly not "clearly erroneous" and there is no evidence to suggest they are. A positive Ninth Circuit decision, then, will not only affirm a right to marry under federal law, but it will affirm these facts and conclusions we all know to be true as a matter of federal law, and these facts can be used in other gay rights cases.

This is the main reason why Perry v. Brown is so important, and why we should thank AFER, its leadership, and its legal team for the progress they are making on behalf of all gay persons. No hypothetical ballot initiative to overturn Prop 8 -- even if successful! -- could help every other gay rights matter like a positive Ninth Circuit decision in Perry could. Advocates would have circuit court precedent for the true equality of gay people as a matter of fact and law, and that would play well in cases related to the Defense of Marriage Act, adoption and surrogacy, employment discrimination, federal benefits for gay service members, anti-harassment laws, and so on.

Third, did Judge Ware abuse his discretion when he denied Protect Marriage's motion to vacate the lower court decision on the grounds that Judge Vaughn Walker should have recused himself? As we have discussed, Protect Marriage's basis for that motion was that because Judge Walker is gay and was in a long-term relationship at the time of trial, he should not have passed judgment on Prop 8 because he may, at some point in the future, want to marry. Judge Ware dismissed that argument as pure conjecture and offensive -- that a gay man cannot be impartial is the stuff of insidious stereotypes. We expect the Ninth Circuit to uphold his decision.

UPDATE: What is the standard of review for discrimination on the basis of sexual orientation?

When Perry began, the governing theory was that sexual orientation discrimination gets the lowest standard of review -- rational basis -- which means that any discrimination against gays can be justified if there is "any conceivable ... legitimate state interest" behind the discrimination. Even though that is a low standard, the Supreme Court has found that certain anti-gay discrimination cannot even pass that hurdle (Romer and, perhaps, Lawrence). Judge Walker concluded that Prop 8 does not pass rational basis review by finding that all the state's possible justifications were baseless and just a smoke screen for anti-gay animus. He also offered an alternative holding that sexual orientation discrimination deserved strict scrutiny because of the history of anti-gay discrimination and the immutability of sexual orientation, among other factors. Since then, President Obama has called for heightened scrutiny -- between rational basis and strict scrutiny -- for state action that discriminates on the basis of sexual orientation. The Ninth Circuit has the first opportunity to declare a standard of review for anti-gay discrimination in this new legal context.

What happens after tomorrow?

Unfortunately, even if the Ninth Circuit affirms Judge Walker's decision, we could not automatically marry our loved ones. The court would have to lift the stay of Judge Walker's order, which it is unlikely to, given the expectation of future appeals.

The losing side has the option of petitioning for a rehearing en banc, which is a reconsideration of the issues by more judges (likely, 11) than just the three on the current panel. A decision on that motion could take a few weeks, but if a rehearing is granted, there could be another hearing. Given how important this case is, an en banc rehearing seems likely. Again, the losing side could then petition for a writ of certiori before the Supreme Court, asking the nation's highest court to take the case, or any part of it. If Perry reaches the Supreme Court, it will most likely be in the Court's next term (2012-2013).

What does this all mean?

Many of us are expecting a positive omnibus decision covering standing, merits, and the motion to vacate. I think the denial of the motion to vacate will be affirmed, standing will be granted, and Judge Walker's conclusions of law will be affirmed. And, when that happens, it will be the greatest day in gay rights history in this country since Lawrence v. Texas. Marriage is a proxy fight for so many things: adoption, surrogacy, access to state entitlements, equality in general. But more importantly, Perry is the vessel through which our federal law will finally recognize the inherent value of who we are. If we can marry, and our law dispenses with the last vestiges of state rationales for anti-gay discrimination -- all of which have been levied against us in Perry -- then states will have few reasons to discriminate against us in other areas. If we can marry, we will finally be able to say, "We belong."


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 research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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  1. @mark: thanks for your question. we always want our decisions to be narrowly tailored, but i fail to see how romer could be the only case that applies since denial of the institution of marriage is very different from the denial of all legislative and political rights. but all our discussions refer to california. i see no reason at the moment to say that anyone thinks the court will automatically apply this case to idaho, for example.

    Posted by: Ari Ezra Waldman | Feb 6, 2012 10:05:38 PM

  2. I hope you're right, Ari.

    Posted by: Jack | Feb 6, 2012 10:07:56 PM

  3. Hm. Well I have to admit that I am not a fan of the whole standing jurisprudence that Scalia et al have created in the last thirty years, so I may be showing my bias. But didn't the Supreme Court of California say that initiative proponents stand in the shoes of the State of California in circumstances like these? I understand that you have to separately assure yourself that there is federal-law standing, but federal courts cannot change California law as articulated by the state's highest court, and it seems to me that means that federal courts must take as given that proponents have any interest in appealing this case that the State of California would have, so that the question is not whether the proponents themselves have standing under federal law, but whether the State of California and its representatives would.

    Also, I think there's a good chance that proponents will try to go straight to SCOTUS rather than trying for en banc. I think they recognize that their chances at en banc aren't any better than they were with this panel and they just want this over with.

    Just my thoughts... Thanks for all the help though!

    Posted by: Tyler | Feb 6, 2012 10:17:21 PM

  4. @tyler: maybe, maybe, indeed. but just note standing as a matter of state law -- whether x could stand in the shoes of the state if all this were happening in state court -- is not the same thing as federal standing, as you note. the court would not have to ignore californias statement of ca law to deny standing. that, of course, is my opinion. its likely that the 9th cir (and, perhaps, the supreme court) will disagree with me. but, thats why they are who they are, and i am just me :)

    Posted by: Ari Ezra Waldman | Feb 6, 2012 10:26:43 PM

  5. There is an easier and more narrow way for the 9th Circuit to find that California acted unconstitutionally -- a way that doesn't affect the other states.

    Specifically, California had previously allowed same-sex couples the to marry, and prior to Prop 8 there was never a state constitutional provision that prohibited same-sex marriage -- this latter point is important because it means there was no prior strong state policy against same-sex marriage. So Prop 8 actually took away a right to marry from same-sex couples, and the question is whether there was a compelling basis, or even a reasonable basis, to eliminate a right that previously existed. From the facts in the record, eliminating that right is not justifiable.

    Also, prior to Prop 8 in California, same-sex domestic partners had all of the same legal rights and obligations as opposite-sex married spouses. So, if California was willing (and still is willing, even with Prop 8 in effect) to give same-sex partners the same rights and obligations of opposite-sex married spouses, then how can California have a compelling basis, or even a reasonable basis, to eliminate the word "marriage" which replaced the term "domestic partnership"?

    A 9th Circuit decision that focused on the eliminating of the right the right to marry and that focused on denying use of the word "marriage" would be a narrow decision that would not directly impact 20+ other states which have never allowed same-sex marriage or domestic partnerships and which have state constitutional provisions against them. In other words, a favorable 9th Circuit decision might mean very little in Alabama, Indiana, Virginia or even in Michigan or Florida, which have never allowed same-sex marriage or domestic partnerships, which have state constitutional bans against both, and which have never "granted and then taken away" such rights.

    Yes, in many ways it would be better to have a strong 9th Circuit decision that simply says it is unconstitutional to deny same-sex partners the right to marry. But that type of decision would be begging the current US Supreme Court to overturn it. On the other hand, a narrow 9th Circuit decision of the type mentioned above (which focuses on taking away the right to marry, and on irrationally denying use of the word 'marriage' to domestic partners who are in every other way considered to be 'married' by law) would be more likely to be upheld by the Supreme Court because it is less threatening to other states.

    Posted by: MiddleoftheRoader | Feb 6, 2012 10:33:45 PM

  6. Just think he could have talked about Witt Standards, scrutiny, protected classes, impact cases, friend of the court briefs, DOMA, DOMA cases, make up of the 9th circuit, cases in other circuit courts etc...

    Posted by: Mark Szabo | Feb 6, 2012 11:29:37 PM

  7. thank you,AEW. So clear and concise. Wish you were my law prof, maybe I would have stayed...

    Posted by: matt b | Feb 6, 2012 11:57:12 PM

  8. I am so tired of our rights being dictated by judges, juries, or ballot boxes. It makes me furious. We are people. Tomorrow better turn out right.

    Posted by: Paul R | Feb 7, 2012 12:29:38 AM

  9. I don't understand how you can say this would be the greatest day for LGBT rights since Lawrence v. Texas when the 9th Circuit's ruling is by no means the final resolution of this case. The case is headed to the extremely conservative Roberts Supreme Court, where a decision won't be issued for at least another year. Everything else is just prologue.

    Posted by: Lester | Feb 7, 2012 12:39:00 AM

  10. PAUL R - SO with you on the tired. So wish that the obvious was obvious, and not such a fight.

    Posted by: TJ | Feb 7, 2012 12:52:42 AM

  11. Great summary, but to dismiss the decision to vacate as the "stuff of insidious stereotypes" is just as vacuous an argument as leaving AFER detailed evidence unanswered. Walker will benefit. He did not publicly disclose his sexual orientation before the trial. That my friend, is a gaping hole.

    Posted by: pmacdee | Feb 7, 2012 12:56:30 AM

  12. Speaking of gaping holes, PMACDEE...

    That is all.

    Posted by: TJ | Feb 7, 2012 1:10:16 AM

  13. The evidence was unanswered because there were no honest arguments against it; one witness was so ashamed of his arguments that he tried to withdraw (although he claimed it was for other reasons.)

    Posted by: Karl | Feb 7, 2012 1:38:15 AM

  14. @Ari: this only just occurred to me. Because the jurisdiction of the 9th Circuit Court controls more than CA, would its decision affect (the three or four) surrounding states? I assume that it's just ruling on Prop 8 as it affects CA, but I don't know the logistics of these courts. And I'm tired and apparently lazy.

    Posted by: Paul R | Feb 7, 2012 2:18:46 AM

  15. Good work! Thanks a lot for post.

    Posted by: custom research papers | Feb 7, 2012 6:44:41 AM

  16. Terrific analysis as usual. I sure hope you're right about the outcome.

    Posted by: Abel | Feb 7, 2012 7:49:14 AM

  17. Thank you for such a succinct and yet impassioned summary. Not very usual when writing about court cases!

    Posted by: Jay | Feb 7, 2012 8:55:30 AM

  18. Ari,

    Could not start the day without expressing a thanks for your wonderful detailed and analytical brief, as usual.!!!..thank you!

    We shall eagerly await more from you later today.....hope all of us see "HOPE" today!

    Posted by: Brains | Feb 7, 2012 9:04:24 AM

  19. I dont see how anyone for gay marriage would want it to go the current US Supreme Court. Kennedy was critical for Lawrence and Romer, but those are very different issues. For one thing, few states had sodomy laws are laws that kept gays from being protected from anti-discrimination laws. For instance, in 2003, about 36 states had legalized sodomy. The Court cited the number of states that had legalized sodomy as evidence that it was a fundamental right. Likewise, the court has cited the large number of states that outlawed juvenile and mentally challenged executions as evidence of their constitutional basis. With same-sex marriage, you have a mere 6 states that legalize it, which undercuts the notion it is a constitutional right. Further, the Court is very squeamish about getting too far ahead of public opinion and state law. The Court doesn't want to be seen as radical, too revolutionary, so it will avoid finding same-sex marriage as a fundamental right until the majority of states have made it legal on their own.

    Posted by: Lucas | Feb 7, 2012 9:04:42 AM

  20. @Tyler,

    My thoughts, precisely!

    We all await with baited breath..!!...will it be jurisprudence or political and social gamesmanship!

    Posted by: Brains | Feb 7, 2012 9:07:43 AM

  21. Actually, whether they lift the stay or not is more dependent on what they consider an equitable ruling than a balance of factors, particularly in light of the fact the govt. of CA refused to defend the law and because this is a constitutional rights issue, though holding for an en banc appeal would make some sense. The main issue for a stay would be the disruption lifting it would cause CA govt. should the ruling be overturned on appeal versus the harm caused by denying citizens their rights. It could go either way.

    Posted by: anon | Feb 7, 2012 9:45:02 AM

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