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Michael C. Dorf

A Viewer's Guide to the Ninth Circuit Oral Argument in the Proposition 8 Case


Monday, December 13, 2010


Last week, the U.S. Court of Appeals for the Ninth Circuit heard oral argument in Perry v. Schwarzenegger, the federal constitutional challenge to California's ban on same-sex marriage.  Because of the complexity of the case, the hearing lasted over two hours.  Although none of the three judges signaled exactly how he would vote, the argument was nonetheless highly instructive.

Most of the issues presented by the Perry litigation have been discussed at length elsewhere--including in columns on this site by myself and Professor Vikram David Amar.  (Examples can be found here and here.)  Rather than rehash prior discussions, in this column I will consider what the oral argument revealed about four issues: (1) Whether there is jurisdiction to entertain the appeal; (2) whether the fact that California's Proposition 8 took away a right that had been previously recognized is constitutionally significant; (3) what standard of scrutiny applies to state laws that discriminate on the basis of sexual orientation; and (4) whether a summary decision issued by the U.S. Supreme Court in 1972 controls the outcome of the case.

Before addressing these somewhat technical matters, however, it is worth mentioning that the panel appeared quite skeptical of the core substantive argument made by Charles Cooper, the attorney representing the proponents of Prop. 8. Repeatedly, Cooper argued that a state acts legitimately in reserving the institution of marriage for heterosexual couples because heterosexual unions can produce children unintentionally, whereas homosexual unions cannot.

Yet Judge Reinhardt and Judge Hawkins were dubious almost to the point of exasperation with this contention, because Cooper never explained how denying same-sex couples the right to call their unions "marriages" in any way encourages or incentivizes opposite-sex couples' decision to marry or stay married (and thus to ensure that any children they unintentionally create will be born within a marital union.)  

At one point, Judge Reinhardt suggested that Cooper's argument would have made more sense had it instead been offered in support of a hypothetical California law banning divorce. (Full disclosure: I served as a law clerk to Judge Reinhardt twenty years ago.)

The third panel member, Judge Smith, was somewhat more sympathetic to the possibility that the child-rearing rationale could survive the most minimal level of constitutional scrutiny, but even he was, by turns, puzzled.  Thus, to the extent that judges inevitably decide first and write justificatory opinions later, the oral argument strongly suggested that Prop. 8 will not be upheld--if the court reaches the merits. But exactly what the court will do remains subject to doubt--for reasons I explain below.

The Standing Issues

The named defendants in the Perry case were the Governor, the Attorney General, two other state officials, and the County Clerks of Los Angeles and Alameda counties. Yet they all declined to defend Prop. 8 in the district court--leaving that task to the Proposition's sponsors, who intervened. After the district court invalidated Prop. 8, the named defendants declined to appeal. Accordingly, before the appeals court can reach the merits, it must first decide whether the sponsors have legal standing to defend Prop. 8.

That question appears to be governed by language in the U.S. Supreme Court's 1997 decision in Arizonans for Official English v. Arizona ("AOE"). Although Judge Reinhardt had written in an earlier opinion in that case (while I was his law clerk) that the sponsors of a ballot initiative do have standing to defend the initiative, Justice Ginsburg, writing for the Court, expressed "grave doubts" about the possibility that ballot-initiative sponsors have standing to defend a ballot initiative when elected officials decline to defend it.

During the oral argument, Mr. Cooper contended that California law grants ballot-initiative sponsors greater rights than Arizona law did, keying in on language in Justice Ginsburg's opinion to the effect that state law plays an important role in determining whether such sponsors may litigate an initiative's validity.

David Boies, arguing the procedural questions for the plaintiffs, countered this argument in two ways. First, he noted that California law nowhere expressly grants initiative sponsors such powers. Second, he explained that even if California law were more generous than Arizona law in that regard, it still would not establish standing, because Justice Ginsburg's opinion in AOE went on to state that the Supreme Court had never "identified initiative proponents as Article III qualified defenders of the measures they advocated," regardless of what state law said. (Article III of the Constitution concerns the federal judiciary.)

Both Judge Smith and Judge Reinhardt seemed troubled by the implication of AOE for a state like California. As they noted, elected officials have no power to nullify a state ballot initiative. Indeed, the whole point of the ballot-initiative process is to permit the People to adopt laws and state constitutional provisions that their elected officials do not favor. Judge Smith worried that if the sponsors lacked standing, then by not defending Prop. 8, the defendant elected officials were in effect nullifying the initiative. Still, no clear way around AOE emerged during the oral argument.

Even if the appeals court holds that the sponsors lack standing, the case could go forward if another putative intervenor--the deputy clerk for Imperial County--is found to have standing. But the argument for her standing seems even weaker than the standing argument for the initiative sponsors. Judge Hawkins, in particular, was troubled by the fact that the actual Clerk was not before the court. He appeared to think that even though the deputy has the same duties as the Clerk under California law, the deputy is not an appropriate representative of the county's interests.

On these points, the oral argument was not especially illuminating. Robert Tyler, arguing for the deputy clerk, fumbled in answering the question of whether the County Clerk is appointed or elected. First, he said he did not know. Then, he said she was appointed, and then--as he concluded his argument--he reported that co-counsel had given him a note saying the County Clerk was elected after all. Although the question whether the Clerk is elected or appointed is not crucial to her deputy's standing, the appearance of a lack of preparation undoubtedly undermined Mr. Tyler's position.

Perhaps the most surprising aspect of the procedural portion of the oral argument was the nearly complete inattention to a key remedial question: If the court finds that neither the sponsors nor the Imperial County deputy clerk has standing to pursue the appeal, what happens next?

If the court simply dismisses the appeal, then presumably the district court order goes into effect, and same-sex couples can once again marry in California. But alternatively, a finding that no one has standing to defend Prop. 8 on appeal could be read to entail that no one had standing to defend it at trial--in which case the appeals court might have to vacate the entire opinion by the district court. The parties' briefs contest just this point--which could prove crucial if the court attempts to resolve the case on procedural grounds.

Is Taking Away a Right Worse Than Not Granting One in the First Place?

During the merits portion of the oral argument, Judge Reinhardt repeatedly suggested that he considered it his obligation to resolve the case on narrow grounds, rather than on broad ones, if at all possible. Here, that means a holding that would invalidate Prop. 8 because it took away a right previously recognized by the California Supreme Court, but that would not necessarily entail a right to same-sex marriage outside of California. When plaintiffs' lawyer Theodore Olson was asked point-blank about this theory, he endorsed the notion that taking a right away can be unconstitutional in circumstances where not recognizing the right in the first place would be permissible.

In my view, this was a somewhat confused answer. To be sure, the Supreme Court's 1996 ruling in Romer v. Evans invalidated a Colorado state ballot initiative that took away the right of persons not to be discriminated against on the basis of sexual orientation. But the key in Romer was not the fact that Colorado took a right away. The key was that it did so for an impermissible reason--simply to harm gays and lesbians.

A line of pre-Romer cases had made clear that government actions motivated by a bare desire to harm a politically unpopular group unconstitutionally deny their targets the equal protection of the laws. But the taking away of a right is merely evidence of that impermissible purpose; it is not independently actionable.

Thus, Mr. Cooper was correct when he called the appeals court's attention to the 1982 Supreme Court case of Crawford v. Los Angeles Board of Education, which stated quite clearly that as a general matter, states may "over-protect" federal constitutional rights (pursuant to state law) and then withdraw that over-protection. (Here, "over-protect" means going further to preserve or defend the right or its exercise than the federal Constitution alone requires.)

The confusion on this point was unfortunate because, in fact, Romer does supply a good basis for invalidating Prop. 8 in a California-specific manner. The evidence the plaintiffs introduced at trial pretty clearly showed that Prop. 8, like the Colorado ballot initiative in Romer, was motivated by animus towards gays and lesbians. Should the appeals court rely on Romer to invalidate Prop. 8, it would do well to emphasize all of the facts tending to show that motivation, and not simply the fact that Prop. 8 takes away a right.

The Court's Various Standards of Constitutional Scrutiny

Anyone who studied constitutional law in the last forty years learned that the Supreme Court's rights jurisprudence applies different levels of judicial scrutiny to different sorts of claims. Laws that employ "suspect classifications" (such as race or national origin) trigger "strict scrutiny." So do laws that burden "fundamental rights" (such as the right of married couples to use contraception).

In contrast, laws that use non-suspect classifications and that burden mere interests (as opposed to rights) trigger a very deferential test, which asks only whether the legislature could have had a "rational basis" for enacting the law at issue.

And, since the 1970s, the Court has sometimes employed a third level of scrutiny--appropriately called "intermediate scrutiny"--for what have been called "quasi-suspect" classifications and "quasi-fundamental" rights.

Which Level of Scrutiny Should Be Applied to Proposition 8?

California's Prop. 8 draws distinctions bearing on the exercise of marriage--long ago recognized as a fundamental right--and distinctions based on sex--which is at least a quasi-suspect classification. Thus, straightforward application of the admittedly baroque doctrine of levels of scrutiny would appear to require that strict, or at least intermediate, scrutiny be applied by the Ninth Circuit as it considers Prop. 8. Yet nearly all of the oral argument focused, instead, on the question of whether there is even a rational basis for Prop. 8.

That leads to an important question: Why did the Ninth Circuit panel focus on a level of scrutiny much lower than the one the law apparently requires to be applied?

The best answer is that, in recent years, the Supreme Court itself has signaled a departure from the distinct tiers of scrutiny, especially in cases involving gay rights. Romer appeared to state a principle (barring laws rooted in animus towards unpopular groups) that applied independently of the level of scrutiny that was applicable. And in Lawrence v. Texas--which invalidated a law banning homosexual sodomy--the Court used language that mixed concepts drawn from its fundamental-rights jurisprudence and from its rational-basis jurisprudence. Accordingly, it has been suggested by Court observers that laws infringing on gay rights may trigger yet a fourth level of scrutiny, known variously as rational-basis scrutiny with "bite," or with "teeth."

But the fact that the laws at issue in Romer and Lawrence failed a somewhat-stronger-than-usual rational-basis test does not mean that this test applies to all laws that touch on gay rights. The plaintiffs have clearly raised the argument that Prop. 8 infringes the fundamental right to marry (and recall that when fundamental rights are implicated, strict scrutiny is triggered.) The initiative sponsors counter that the right to marry was never previously extended to same-sex couples, and, thus, that the alleged right that the plaintiffs seek to exercise is something new, different, and, most critically, not fundamental.

To my mind, that is a question-begging proposition, one that denies the plaintiffs' claim without even evaluating their arguments. Perhaps the appeals court will nonetheless accept it, but it will at the very least need to confront the issue--should it find that Prop. 8 satisfies rational-basis scrutiny.

Given that possibility, it was surprising that Mr. Cooper spent so little of his time arguing that Prop. 8 can satisfy strict scrutiny. Perhaps he understands that even if Prop. 8 is a barely rational means of promoting marriage for opposite-sex couples, it is certainly not "narrowly tailored" to achieve that objective, as strict scrutiny requires. Thus, he may not have pressed the strict scrutiny argument because he views it as a sure loser.

Prior Ninth Circuit and Supreme Court Precedent

Another reason why the appeals court focused on rational-basis scrutiny may be that prior circuit precedent rejected heightened scrutiny for sexual-orientation discrimination. Under Circuit rules, one three-judge panel must accept the precedents set by a prior three-judge panel, absent an intervening Supreme Court decision or a Ninth Circuit en banc ruling.

Meanwhile, the Prop. 8 proponents continue to argue that the entire issue of same-sex marriage is not open for consideration by any court other than the Supreme Court, in light of the 1972 decision in Baker v. Nelson. That was a summary order by the Court rejecting an appeal from a challenge to Minnesota's refusal to extend marriage to same-sex couples.

As was explained at length by Professor Amar in two columns on this site last year (here and here), Baker does appear to be binding--notwithstanding valiant efforts by the plaintiffs to argue that their challenge to Prop. 8 is sufficiently different from the Minnesota case to render the latter inapplicable.

Professor Amar also wrote, at the time, that notwithstanding the binding effect of Baker, Judge Walker would be justified in holding a trial (as he did) for the purpose of finding the facts that would be relevant to a possible Supreme Court re-consideration of restrictions on same-sex marriage. Even if one thought that true at the time, however, the situation now facing the Ninth Circuit--which does not have any further fact-finding capacity--is different. Any ruling on the merits in the appeals court will pave the way for Supreme Court review.

Moreover, during the oral argument, the judges appeared to be looking for a way around Baker. Mr. Olson offered that Baker was a sex-discrimination rather than a sexual-orientation-discrimination case, but during his rebuttal, Mr. Cooper quoted from the papers in Baker to show that the sexual-orientation discrimination issue was certainly presented to the Court.

Should the appeals court disregard Baker, it will almost certainly be for the commonsensical reason that the constitutional law and social attitudes regarding sexual orientation have changed so much since 1972 that Baker cannot really be seen to have addressed the same issue at all. If the appeals court needs doctrinal support for this move, it can look to the U.S. Supreme Court's decision earlier this year in McDonald v. Chicago, in which the majority treated Nineteenth Century decisions about the right to bear arms as so outdated that they did not even constitute applicable precedents that needed to be either followed or overruled.

To be sure, an appeals court has less flexibility to disregard Supreme Court precedent than the high Court itself has. But that's only as a matter of theory. If the appeals court "guesses right" by treating Baker as not controlling, then the worst that the Supreme Court can do is admonish the judges to be more cautious the next time. If and when the issue reaches the Supreme Court, the Justices will surely focus the lion's share of their attention on the merits--not on how the appeals court should have treated a 1972 summary order.

Before the case makes it to Washington, however, there will likely be quite a few more twists and turns in California.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. His latest book is   The Oxford Introductions to U.S. Law: Constitutional Law   (with Trevor Morrison). He blogs at

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