Prop. 8 briefing complete
on Aug 16, 2010 at 12:59 pm
Backers of California’s Proposition 8 ban on same-sex marriage in that state on Monday questioned whether a federal judge lacked the authority even to rule in the federal constitutional case, so his ruling striking down the ban must be wiped out.  The argument was made as attorneys completed the briefing before the Ninth Circuit Court on whether District Judge Vaughn R. Walker’s ruling will be postponed while the ban’s supporters pursue an appeal.
Since state officials had agreed with the challengers to Proposition 8 that the ban was unconstitutional, there was no live “case or controversy” before Judge Walker unless the supporters of the ballot measure had a right to be in court (that is, had ‘standing”), the proponents’ final brief asserted.  The question of who can defend the state ban, if state officials themselves did not, hangs over the entire effort to put Judge Walker’s ruling on hold. State officials have made clear that they want the judge’s decision to take effect promptly, and thus are not themselves pursuing an appeal or any delay. The Proposition’s supporters insist that they do have “standing,” and thus can carry on the case to defend the ballot measure.
With all briefs now in on the stay issue, the Ninth Circuit could act at any time. If Judge Walker’s decision is not put on hold, it is scheduled to take effect at 5 p.m. Wednesday, clearing the way for same-sex couples to obtain licenses and get married.
While the question of “standing” could determine whether the case goes on, including potentially a trip to the Supreme Court, the two sides in the controversy have devoted most of their written arguments in the Ninth Circuit to the merits of the case — that is, the constitutionality of Proposition 8.  In their new reply brief, for example, the ban’s supporters discussed the standing issue on only two pages and in five footnotes in a 15-page document; the remainder sought to show that Proposition 8 is clearly valid as a means to protect the traditional view that marriage should be reserved for opposite-sex couples only.
One of the proponents’ main arguments that Judge Walker was wrong on the merits is that the Supreme Court has already settled the constitutional question of whether forbidding same-sex marriage denies those couples’ constitutional rights. For that, they relied on the Justices’ one-line ruling on Oct. 10, 1971, in Baker v. Nelson (409 U.S. 410), dismissing an appeal “for want of a substantial federal question.” In that case, a Minnesota Supreme Court decision had upheld that state’s refusal to recognize single-sex marriages.  The Supreme Court’s order summarily rejecting a challenge to that decision, the Proposition 8 backers’ new brief argued, “mandates reversal” of Judge Walker. The Supreme Court has never repudiated the Baker ruling, the brief noted, so lower courts are bound by it in the meantime.
Even though the Proposition 8 case, as it now stands before the Ninth Circuit, will not lead to a final ruling on the measure’s constitutionality, one of the factors the Circuit Court has to consider in deciding whether to put the Walker decision on hold is whether the ban’s supporters are likely to win their argument if the case is allowed to proceed to the merits. In refusing to delay his ruling, Walker found that the backers had no prospect of winning on the merits, and questioned whether the case could ever get to the merits because only state officials would have “standing” to appeal, and they are not.
In discussing the standing issue in their final brief, the Proposition’s supporters once again insisted that California state court rulings have made clear several times that supporters of ballot measures may carry on in court the defense of such measures if state officials do not do so.  The proponents argued anew that they thus do have standing, and repeated, in a footnote, their separate argument that, if they do not have “standing,” at least the local officials of Imperial County, Calif., do have “standing” as enforcers of state marriage law, so the case can go forward with Imperial County defending the Proposition.
The new brief by the proponents sought also to turn the tables on the “standing’ issue. If they and Imperial County lack standing, the brief said in a footnote, then there was no live “case or controversy” before Judge Walker because that would leave as parties in his Court only the same-sex couples who sued, the city and county of San Francisco who joined in the case, and state officials — all of whom are on the same side, contending that Proposition 8 is invalid under the U.S. constitution.’
If the other side is correct that the measure’s supporters lack standing, “then the court below [Judge Walker] likely lacked jurisdiction (and its judgment must therefore be vacated) because the Attorney General agreed that Proposition 8 was unconstitutional,” the brief said. Citing Supreme Court precedents, the brief noted that “there is no Article III case or controversy when the parties desire precisely the same result.”
No further filings are expected in the Ninth Circuit before it acts on the stay question.
