Musings on Some Procedural, But Potentially Momentous, Aspects of the Proposition 8 Case As it Goes to the Ninth Circuit
	By VIKRAM DAVID AMAR
	Friday, August 13, 2010

Now that federal District Judge Vaughn Walker has said his invalidation of California's ban on same-sex marriage (Proposition 8) should take effect and permit same-sex marriages statewide beginning August 18, the U.S. Court of Appeals for the Ninth Circuit takes center stage. 

The backers of Proposition 8 who will be appealing the case to the Ninth Circuit will first ask the appellate court to enter the stay that Judge Walker declined to enter, so that the status quo (i.e., no gay marriage in California) will remain in effect until the Ninth Circuit resolves the appeal entirely.   Then, no matter how the Ninth Circuit rules on the stay issue, same-sex marriage opponents will focus on the merits of Judge Walker's ruling -- on the question whether Proposition 8 is indeed unconstitutional under the Fourteenth Amendment's equal protection and due process clauses. 

Proposition 8 backers will argue, among other things, that Judge Walker was wrong to feel unconstrained by a summary 40-year-old Supreme Court ruling involving gay marriage in Minnesota about which I have written in a prior column.  They will also argue that Judge Walker was wrong to suggest that, under the applicable Supreme Court precedents, so-called "strict scrutiny" (the most demanding of judicial inquiries) is the appropriate test by which to judge Proposition 8, and also that Judge Walker erred in concluding that the voters of California lacked any "rational basis" to enact the controversial measure.

In this column, I focus on two other, and seemingly procedural, issues that the Ninth Circuit may have to look at before it ever engages the merits of the Fourteenth Amendment inquiry.   One is the question of whether the order Judge Walker issued -- banning the state from enforcing Proposition 8 against any same-sex couples -- was overly broad in its application.  The other is whether the official sponsors of Proposition 8, who were the only ones who defended the measure at trial, have the requisite standing to even participate as parties in the case the way they did.

The Unexplored Scope of Judge Walker's Order

Let us look first at the scope of the order -- called an injunction -- that Judge Walker issued.  He directed all relevant state officials not to implement Proposition 8 with respect to anyone.  At first blush, this makes sense; if Proposition 8 violates the federal Constitution, it ought not to victimize any Californian.  But under applicable Ninth Circuit cases, there is a plausible argument that Judge Walker's power was limited to issuing an injunction that protects only the named plaintiffs, and not other same-sex couples, since the lawsuit was not certified as a class action.  As one important Ninth Circuit case (Zepeda v. INS) put the point: a "federal court may issue an injunction if it has [judicial power] over the parties and the claim; it may not attempt to determine the rights of persons not before the court.  [An] injunction [invalidating a law or policy] must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs."

If this principle were applied in the Proposition 8 case, tailoring the injunction to the plaintiffs only would mean that the same-sex couples who were named parties in the case -- the actual clients of lawyers David Boies and Ted Olson -- would have a right to obtain marriage licenses, but no other same-sex couples would be covered by the injunction. 

Of course, if state officials (whether the Governor or county clerks) wanted and voluntarily chose to follow the logic of Judge Walker's ruling and go ahead and issue same-sex marriage licenses in spite of Proposition 8's ban, nothing in federal law stops them.  But that would be a political decision by elected state officials for which they would be politically accountable.  They could not hide behind the injunction and argue that they had no choice but to comply with Walker's ruling because they didn't want to be punished for contempt of court.  Walker's ruling would simply not apply to any California officials outside the context of the individual plaintiffs who brought suit.

(As an aside, if Walker's injunction were limited to the named plaintiffs, the argument that the injunction should be stayed pending resolution of the whole appeal becomes less weighty; a stay would affect only a few marriages rather than thousands of marriages, and thus be harder to justify, and the individual named plaintiffs could easily be informed now that if they marry and Judge Walker is reversed on appeal on the merits, their marriages would likely be voided.)

The Troublesome Question of Proposition 8's Sponsors' Standing

Let us now turn to the thornier question of whether the sponsors of Proposition 8 have standing to litigate this case and, if not, what should happen. 

The Supreme Court has said that both plaintiffs and defendants need to have a particularized and direct stake in the outcome of a dispute for it to qualify as a "case or controversy" that is properly resolved in a federal court under Article III of the Constitution.  In 1997, in Arizonans for Official English v. Arizona, the Court strongly suggested that the sponsors of an Arizona initiative that imposed English as the official state language lacked standing under Article III to defend the measure against constitutional attack. 

As the unanimous Court observed,  the sponsors "are not elected representatives [of the state], and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.  Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. . . . We thus have grave doubts" about whether the Arizona initiative sponsors have standing.

The Court in the Arizona case ultimately ruled on other grounds, so it didn't need to actually decide whether the initiative sponsors had standing, but the language and analysis above seems ominous for the backers of Proposition 8.  Although I have not conducted exhaustive research, I do not know of any California statute or judicial opinion that makes initiative sponsors the agents of the electorate for litigation purposes, and so California's regime may not be easily distinguishable from Arizona's.  And unless the unanimous Court backs away from the strong language it penned in 1997, the sponsors of Proposition 8 may not be appropriate parties to pursue an appeal to the Ninth Circuit.  Judge Walker allowed these sponsors to intervene in the case at the trial court, but his ruling doing so did not really explain itself or address at all the concerns the Supreme Court identified in the Arizona case.

If the Ninth Circuit concludes that the Proposition 8 sponsors lack standing, then what?  Although the answer is complicated, my initial sense is that if these sponsors are not appropriate parties on appeal, they also lacked standing to defend in the trial court.  Which means the trial itself should not have occurred, because there wasn't the constitutionally required concrete and adverse advocacy on both sides. 

So we would be left with a situation in which plaintiffs sued the state defendants properly, but the state defendants (the Attorney General and Governor) admitted all the relevant facts and did not contest the legal theory of the plaintiffs.  My instinct is that, in such a situation, the district judge was wrong to conduct a non-adverse trial, but instead should have decided the case using either a default judgment or perhaps summary judgment based on his own legal research and reasoning, taking the facts as alleged by the plaintiffs as a given.   Judge Walker's result would likely have been the same, but all the reliance he placed his "factual findings at trial" -- a reliance that has been noted by many commentators -- would go away.

And without the Proposition 8 sponsors as intervenors, the decision by the Governor and Attorney General not to defend Proposition 8 (which is something the press has barely noted in passing in covering this case) becomes much more salient and much more important, and thus probably much more politically complicated.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.