Reflections on the Trial Challenging California's Proposition 8, the Ban on Same-Sex-Marriage
	By VIKRAM DAVID AMAR
	Friday, June 18, 2010

This week, in San Francisco, the federal district court trial concerning the validity of California's Proposition 8, the State's ban on same-sex marriage, finally concluded. In this column, I offer a few reflections on the trial and what will follow from it. (For more background on the case, interested readers may also want to refer to an earlier set of columns I penned on this trial.)

Closing arguments were held on Wednesday in this pathbreaking lawsuit. The plaintiffs are same-sex couples who brought a federal constitutional challenge in federal court against the 2008 California initiative that defines marriage as being between a man and a woman only. With a decision and opinion by U.S. District Judge Vaughn Walker expected sometime this summer, many local observers and the national press are anxiously speculating on how Judge Walker will rule.

Even If Judge Walker Invalidates Proposition 8, a Stay of the Ruling Seems Likely -- So that No Same-Sex Marriages Will Immediately Ensue

My first observation is that as significant as Judge Walker's ruling will be, in many ways it will serve primarily as a placeholder. For starters, if Judge Walker invalidates Proposition 8 (thus opening the door for same-sex couples to marry), either he or the U.S. Court of Appeals for the Ninth Circuit, the court that oversees him, would seem inclined to issue a stay of -- that is, a temporary block on -- his ruling until the case has run its entire appellate course.

California already saw firsthand the downside of issuing same-sex marriage licenses before the highest courts had spoken in 2004, when San Francisco -- under the direction of Mayor Gavin Newsom -- began marrying gay and lesbian couples before the California Supreme Court had recognized a right to same-sex marriage. The result was that, months later, those marriages were ruled to be a legal nullity.

(This is to be contrasted with the issuance of same-sex marriage licenses after the California Supreme Court did recognize same-sex marriage under the state constitution in May 2008, and before the voters amended the constitution later that year by adopting Proposition 8. The same-sex marriages entered into during that interim period, between May and November 2008, have been left intact, even as Proposition 8 closed the door, for the time being, to future same-sex nuptials. The reason that these marriages endured, while the Newsom-authorized marriages did not, is that in the latter situation, the state's highest court had spoken and finally construed the meaning of the state constitution at the time, and the voters who adopted Proposition 8 technically did not overrule the state supreme court, but rather changed state law from what it had been before.)

Given the State's experience over the last six years, I would think Judge Walker and/or the Ninth Circuit would be receptive to a motion for a stay of any ruling invalidating Proposition 8 while the case moves up the ladder, so as to avoid the kind of disorder and dashed expectations that were suffered by the same-sex couples who married after Mayor Newsom's actions t in 2004.

The Ultimate Ruling of the U.S. Court of Appeals for the Ninth Circuit Is the Key Here

My second, and related, observation is that the key court in the Proposition 8 battle may end up being the Ninth Circuit Court of Appeals -- not the District Court or the U.S. Supreme Court.

Virtually every news outlet, when covering the Proposition 8 trial, closes its story with a comment such as, "Analysts agree that the Supreme Court is ultimately the place where this case will be resolved." But that is true only in the technical sense that some party in the Proposition 8 case is likely (unless Proposition 8 is itself repealed at the ballot box before this litigation winds down) to ask for Supreme Court review, thereby giving the Supreme Court a chance to weigh in if it wants to do so. But the question whether the high Court does indeed weigh in on the merits of the Proposition 8 dispute is much iffier, and depends a lot on the Ninth Circuit's decision.

If the Ninth Circuit rejects the plaintiffs' challenge and upholds Proposition 8, I would be very surprised to see the U.S. Supreme Court grant the plaintiffs' request to take up the case. As far as I can tell, there would be no conflict among the lower courts on the question of a federal right to gay marriage (no court has yet embraced one), and the Justices in Washington DC would, I suspect, be quite content to let the issue "percolate," as they say, in the states and the lower courts for a while before deciding to address it.

Alternatively, if the Ninth Circuit were to invalidate Proposition 8, but do so in a way that called into question only California's ban on same-sex marriage (by pointing out some uniquely problematic feature of the California scheme) -- but not similar bans in other states -- then it is still possible (though much less likely) that the Supreme Court would stay out of the matter.

The likelihood of Supreme Court review will go up a great deal more if the Ninth Circuit invalidates Proposition 8 on the broad grounds that all same-sex adult couples have a right to enter into marriage under the Fourteenth Amendment, period. This kind of ruling would essentially create a federal constitutional right in the Western states that hasn't been recognized elsewhere; under those circumstances, I think the Supreme Court would have a hard time deferring (or dodging, depending on one's point of view), the issue for long.

Ninth Circuit Procedure: Will Three Judges or, Ultimately, More Weigh In on the Proposition 8 Issue?

So what is likely to happen in the all-important Ninth Circuit? That is hard to predict, in part because much depends on which three judges are randomly drawn to hear the appeal from Judge Walker's ruling. And we won't know the identity of those three judges for many months, and perhaps even a few years.

What we can say now is that the Ninth Circuit is a place where it matters a great deal, in high-profile cases, which three judges get drawn; while the Ninth Circuit has a reputation for being liberal, I think it is more accurate to say the Ninth Circuit has a lot of smart, confident, independent-minded judges, and a significant (though not overwhelming) number of them are traditionally liberal or libertarian in their philosophy, so that drawing two or three liberal judges on one panel happens not infrequently. So how the Ninth Circuit panel rules in the Proposition 8 case may turn in significant measure on who comprises the panel.

It is also very important to note here that there is one possible step in between the three-judge panel and the Supreme Court, known as "en banc" review -- that is, review by an entire court, not just a three-judge sample of the full court. In all federal courts of appeals other than the Ninth Circuit, when a case that has been decided by a three-judge panel is -- because of its importance and/or to preserve the uniformity of law within the circuit -- taken en banc, all of the active (that is, non-emeritus) judges of the court then convene to rehear and resolve the case. In the Ninth Circuit, however, because of the large number of active judges (over 25), en banc review, in practice, usually does not consist of the entire court's rehearing the case, but rather of 11 of its judges (the Chief Judge and ten other randomly selected judges) doing so.

What are the chances that the Proposition 8 case will be heard by the Ninth Circuit sitting en banc after a three-judge panel rules? That, too, depends on what the three-judge panel does.

En banc review in the Ninth Circuit is complicated, because there is no way to predict which 10 judges will be randomly selected to join the Chief Judge; whereas in other federal courts of appeals, the entirety of the en banc panel is known before a request for en banc review is made or voted on by the judges, in the Ninth Circuit, the identity of the en banc group is a bit of a wildcard. This has led some observers to think that parties and judges in the Ninth Circuit may sometimes be disinclined to pursue en banc review, out of a fear that the 10 judges who are drawn to join the Chief Judge might be disappointing to one's cause, and might in practical terms entrench an unfavorable ruling even more than the three-judge panel decision did.

How might that play out in the Proposition 8 case? If the three-judge panel rules against the plaintiffs and in favor of Proposition 8, the challengers to the ban on same-sex marriage might seek en banc review, but they might not. If they obtain en banc review and lose in front of the group of 11 judges, that loss does more damage to the cause than the loss in front of the three-judge panel; it may be harder to later undo an unfavorable en banc ruling than an unfavorable three-judge ruling. And, as already suggested earlier, the Supreme Court is unlikely to step in if the Ninth Circuit lets Proposition 8 stand, so an en banc ruling against the plaintiffs would likely persist for some time.

If, however, the three-judge panel rules in the plaintiffs' favor and strikes down Proposition 8, then Proposition 8's defenders have little to lose by seeking en banc review. If they obtain en banc review and win en banc, the Supreme Court will probably leave that en banc ruling undisturbed. And if they lose in front of the en banc panel because of that panel's makeup, they probably don't have to worry about having that ruling remaining on the books for long, because the Supreme Court, as I suggested earlier, will likely have a lot of pressure on it to step in and resolve the matter for itself if Proposition 8 is invalidated.

The District Court Ruling Will Not Be Irrelevant -- For Its Fact-Findings and Framing of the Issues Will Matter on Appeal

Thus, the Ninth Circuit -- speaking through either three or eleven of its judges -- is where important action in this dispute will take place. Yet none of this is to say that District Court Walker's ruling, whenever it is handed down in the coming weeks or months, will be entirely irrelevant.

To the contrary, the way that Judge Walker has framed, and will in his opinion frame, the issues; the findings of fact he makes; and his important decision to hold a trial (with witnesses and cross-examination) in this case in the first place, rather than resolve the dispute on papers alone, will all affect the Ninth Circuit's (and potentially the Supreme Court's) review of the case. I'll follow up on with other columns, commenting further on these complex matters, after Judge Walker rules.

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.