New support for Prop. 8 marriage ban

By Lyle Denniston
on Mar 7, 2011 at 9:42 pm

The supporters of California’s Proposition 8 — the ban on same-sex marriages in the state – argued Monday that a temporary postponement of any right to wed should remain in effect while the constitutional controversy goes on.   The backers also contended that, if they ultimately lose in that dispute, the result actually should be that no gay couples could marry in the state because the dispute would then be beyond the courts’ reach.

This was the Prop. 8 supporters’ reply to a recent plea by same-sex couples in the state that the Ninth Circuit Court should now clear the way for such couples to get married right away.  The couples, claiming changed circumstances, asked the Circuit Court to lift a temporary stay that has blocked a federal judge’s August decision striking down Proposition 8.

U.S. District Judge Vaughn R. Walker’s ruling against Proposition 8 has been delayed while the Circuit Court reviews it.  But the appeal process, which had been moving rapidly, has now slowed down while the Circuit Court awaits legal advice from the California Supreme Court on a potentially decisive question of state law.   Until the state court acts, the Circuit Court has said, it will do nothing with the appeal — and the state court is not expected to act finally until this September, at the very earliest.

The fact that everything is on hold in the Circuit Court, however, did not deter the opponents of Proposition 8 from asking the three-judge panel to end the delay so that same-sex couples could marry.   One of the reasons they cited was that the Obama Administration has provided new support for the argument that treating gay couples differently in their marriage rights is unconstitutional.  Another reason they claimed was the delay due to the California Supreme Court proceeding — a proceeding that could have a heavy bearing on whether anybody has a right to defend Proposition 8’s constitutionality, taking the place of state officials, who refuse to do so. 

Strenuously resisting the gay couples’ plea, the ballot measure’s supporters said Monday that there have been no genuine changes in circumstances that would warrant immediate clearance for gay marriages.   Having failed to persuade the Circuit Court that Judge Walker’s ruling should go into effect, the Proposition 8 backers said, the same-sex couples are simply trying to relitigate that question.

Moreover, their reply added, if the Ninth Circuit were ultimately to rule that the backers of Proposition 8 had no right to appeal Judge Walker’s ruling, that would have the opposite effect than gay couples now expect.   If no one has standing to appeal Judge Walker’s decision, the reply brief said, the effect would not be to put that decision into effect, thus allowing gay marriages to occur.

Rather, the brief said, the Circuit Court would have no choice but to wipe out the Walker decision entirely, on the theory that he had no jurisdiction to issue such a sweeping ruling against Proposition 8’s enforcement.   Judge Walker “almost certainly exceeded” his authority, the Proposition’s supporters contended, because he did not confine his ruling simply to the specific gay couples who had sued, but struck down the measure entirely.

Thus, the Walker decision, at the very most, would reach only a few couples, and other same-sex partners who want to marry would not have gained the opportunity to do so, the brief said.

As to the couples’ argument that circumstances have changed since the Circuit Court temporarily blocked the Walker decision, the ballot measures’ supporters disputed every aspect of that contention.  The change of constitutional views by the Obama Administraion has only to do with a federal law, the Defense of Marriage Act, and thus has no impact on whether states must recognize gay marriages, the brief said.

Moreover, the state law review process now going on in the California Supreme Court — as a prelude to any ruling by the Ninth Circuit on the pending appeal on the constitutionality of Proposition 8 — is causing no more delay in getting that ultimate issue resolved than the time the gay couples took to pursue their challenge in federal court.  Their complaint about delays in the entire case now “rings hollow,” the brief said.

Moreover, it would show disrespect to the state Supreme Court, the brief asserted, for the Circuit Court to now lift its stay and “precipitously suspend” operation of Proposition 8’s ban, the brief said, adding:  “Federal courts…should exercise their discretionary power with proper regard for the rightful independence of state governments…”

Besides resisting the notion that gay marriages should be allowed to go forward now, the backers of Proposition 8 also notified the Ninth Circuit on Monday that they support the plea by the county clerk of Imperial County, California, that he should be allowed to enter the case to defend the constitutionality of Proposition 8.   The Circuit Court has already refused to let Imperial County into the case, but the County has a new clerk who is trying to change that.

If it should turn out that the state court, and the Ninth Circuit, ultimately were to rule that the backers of Proposition 8 themselves do not have a right to appeal Judge Walker’s decision against the measure, a decision to let Imperial County mount a defense would keep the case going.  The filing supporting Imperial County’s plea to intervene can be found here. On the other hand, the challengers to Proposition 8, as well as the city and county of San Francisco, opposed Imperial County’s plea to enter the case.  The couples’ filing is here, and the San Francisco document is here.

The Circuit Court has given no indication when it might rule on the plea to let gay marriages now occur.