UPDATED 9:08 a.m. This post has been updated, in the closing paragraphs, with the filing of the merits brief in the Imperial County case, separate from the appeal by the supporters of Proposition 8.
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Beginning a sturdy new defense of California voters’ right to impose a flat ban on same-sex marriage, the supporters of the controversial Proposition 8 told a federal appeals court Friday night that the case should go forward but, as an alternative, should be thrown out of court altogether with no ruling left on the books on the ban’s constitutionality. Scuttling the case, of course, would leave the ban in place. In a 134-page merits brief, the proponents sought to answer critics who have argued that the foes of gay marriage have no right to appeal a federal judge’s decision striking down the ban.
The Ninth Circuit Court, in putting on hold last month the judge’s ruling voiding the ban, ordered the Proposition’s supporters to justify their right to pursue an appeal. In response, their lawyers wrote that California law clearly gives them the right to defend what the voters did in approving the ballot measure, but, in any event, a California county government — in Imperial County — at least should be allowed to carry on the fight in the Circuit Court since its marriage license officials have a duty to obey the ban and thus to come to its defense.
On the merits of the constitutional argument, the hefty new brief argued that the Supreme Court has already issued a ruling that should end the debate over gay marriage in the courts. This was a reference to the Supreme Court decision in 1972 in the case of Baker v. Nelson. In that case, the Minnesota Supreme Court had ruled that it was not unconstitutional to limit marriage to a man and a woman, and the Supreme Court summarily dismissed an appeal seeking to challenge that result; the Justices’ order said the case did not raise a “substantial federal question.” The Prop 8 supporters argued Friday that this outcome was a binding precedent that the Supreme Court has never abandoned, so it remains in force.
U.S. District Judge Vaughn R. Walker ruled on Aug. 4 that Proposition 8 violates the constitutional right of legal equality to all individuals who wish to marry, whatever their gender or sexual orientation. Walker said that, over a period of generations, gender discrimination in marriage had been gradually overcome, so that gender no longer determined who was eligible for marriage. Excluding couples of the same sex from the institution of marriage, the judge found, was simply a new form of discrimination based on gender.
That decision has been appealed to the Ninth Circuit, and the brief filed Friday by the Prop 8 supporters was the first of the written arguments to reach that Court. The opponents of the California ban are to file their response on Oct. 18, and the Prop 8 backers are to reply by Nov. 1. The Circuit Court is scheduled to hold a hearing during the week of Dec. 6 — a schedule that suggests that the case is not likely to reach the Supreme Court in time for any final action during the new Term that opens Oct. 4 and runs through late June.
California state officials have refused to defend Prop 8 in the federal courts. An attempt by supporters of the ban to get the state courts to force state officials to pursue an appeal failed earlier this month. The absence of official state defenders has raised the question of whether someone else could step in as the ban’s formal defender in court. In trying to justify their claim to pursue an appeal even though the state is on the sidelines, the Prop 8 supporters said that, if the Circuit Court lacks jurisdiction to decide the appeal, then Judge Walker also had no authority to decide. So, the Prop 8 lawyers asserted, Walker’s ruling would have to be vacated.
The principal argument the Prop 8 brief makes for overturning Judge Walker on the merits is that his ruling runs counter to centuries of tradition and legal certainty over the notion that a primary purpose of marriage was to bear children, so it is an institution that should be reserved for those who can themseves procreate — a man and a woman.  The brief sought to create the impression that the recent rise of a movement to promote same-sex marriage was simply a novel modern notion that custom should now be abandoned through the creation of a constitutional right of homosexual marriage that is virtually unheard of in law.
The Prop 8 backers’ appeal is Perry, et al., v. Schwarzenegger, et al. (Circuit docket 10-16696). Meanwhile, Imperial County, its governing board, and its officer in charge of issuing marriage licenses filed have their own appeal in the Ninth Circuit (the Imperial County case carries the same title, but the documents in it are filed under a separate number, 10-16751). Judge Walker refused to allow Imperial County and its officials into the case in the District Court, finding that they had an insufficent official interest in the outcome. Their appeal seeks to overturn that, so that they can then join in the case and mount a defense of the ban. The county’s appeal has been put on the same briefing schedule as the Prop 8 appeal. As of early Saturday (Eastern time), Imperial County’s merits brief had not yet been docketed in the Circuit Court.
UPDATE: The Imperial County brief on the merirts was filed prior to midnight Pacific time. The county and its officials open with a defense of their claim of a right to intervene in the case, arguing among other points that the case is too important to have it be dismissed for lack of an official defender. The brief then goes on to argue the merits of the ban’s constitutionality, closely paralleling the arguments made by the Proposition’s supporters.
Here is the county’s summary of its intervention argument: “This case presents the truly extraordinary situation of a constitutional provision without a single governmental defender, because the Atttorney General, Governor, and all other Government defendants are either not defending Proposition 8 or are taking an active position against Proposition 8, coupled with their subsequent refusals to appeal the decision of the district court declaring it unconstitutional. And although the official ballot proponents of Proposition 8…have properly intervened and offered a vigorous defense of Proposition 8, their Article III standing to appeal has been called into question by the plaintiffs and the district court. The momentous issues in this case — which have national implications — surely warrant review and definitive resolution by this Court and perhaps even the Supreme Court.”
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