This week, a three-judge panel of the Ninth Circuit Court of Appeals – a liberal Carter appointee, a moderate Clinton appointee and a conservative George W. Bush appointee – heard oral arguments on Prop 8. And activists on each side have complained about the judges’ ideologies. Right-wingers are apoplectic that Judge Stephen Reinhardt’s wife heads the Southern California chapter of the ACLU, while liberals argue that Randy Smith is a Mormon – whose Church had members pay tithes to the Prop 8 campaign. But the first half of the oral argument was on the issue of “standing:” because the state has opted not to appeal this case, can Prop 8 supporters appeal Judge Walker’s decision themselves? Ironically, Reinhardt’s past rulings suggest that he would rule that they can – whereas Smith’s opinions suggest they may not. If the Ninth Circuit rules that Prop 8 supporters lack standing, gay couples will be able to get married in California.
From the moment the Ninth Circuit announced the panel of three judges – selected at random – for the Prop 8 case, conservatives have complained that Judge Reinhardt is too “liberal” to rule on this case and have demanded his recusal. And when you consider his reputation as the most reversed appellate judge in the country, they have plenty of talking points to back up that claim. His wife, for example, is Executive Director of the Southern California ACLU.
But this case is not strictly about Judge Vaughn Walker’s decision overturning Prop 8, and whether taking away the rights of committed same-sex couples to marry violates the U.S. Constitution. With Jerry Brown and Kamala Harris having won their races for Governor and Attorney General, respectively, the State of California will not appeal the lower court decision – leaving only the right-wing Prop 8 advocates to contest it. And because there are questions about whether they have standing to sue, their appeal may go nowhere.
Which is why Monday’s oral arguments spent considerable time going over whether Prop 8 supporters have “standing,” and only an hour on whether it violates the Constitution. In order to have standing, the appellants would have to prove they have suffered an actual “injury” – that letting gay couples marry would affect them.
The question of “standing,” of course, is a tricky one – and despite his liberal reputation, Judge Reinhardt is likely to side with Prop 8 supporters on this question. In 1988, voters in Arizona passed an “English-only” proposition – which was quickly challenged in court on constitutional grounds. The State of Arizona declined to get involved, so a right-wing advocacy group that campaigned for its passage intervened – and applied for standing.
At the Ninth Circuit, Judge Reinhardt wrote the Court’s decision – which granted their request. “The official sponsors of a ballot initiative,” he wrote, “have a strong interest in the vitality of a provision of the state constitution which they proposed and for which they vigorously campaigned … Moreover, as appears to be true in this case, the government may be less than enthusiastic about the enforcement of a measure adopted by ballot initiative; for better or worse, the people generally resort to a ballot initiative precisely because they do not believe that the ordinary processes of representative government are sufficiently sensitive to the popular will with respect to a subject.”
Of course, the U.S. Supreme Court unanimously reversed Reinhardt’s decision – and determined the right-wing “English-only” campaign did not have a “direct stake” in the outcome. What does that mean? Legal precedent does not look good for Prop 8 supporters to have their day in court to argue that Judge Walker’s decision was wrong, but ironically they have chosen to pick on the one “liberal activist” judge who agrees with them on this question.
Meanwhile, liberal activists have complained that Randy Smith – a George W. Bush appointee – should recuse himself from this case because he is Mormon. At first blush, this appears unfair – because it sounds like religious discrimination, and Vaughn Walker (who ruled against Prop 8 ) did not have to step down for being gay. But at Firedoglake, Teddy Partridge argued that the Mormon Church was heavily involved in passing Prop 8 – and Church elders ordered members to pay a tithe to the campaign.
“In our plural system,” he wrote, “the religion of judges should not matter. But when one denomination, the Church of Jesus Christ of Latter Day Saints, directs the campaign for, sponsors, and funds the passage of a referendum that adds to a state’s constitution a ban on civil marriage, Americans have the right to know what their civil judges’ church involvement in the passage of that ban was. Just because it happened within the confines of a church doesn’t make it protected political speech that an impartial judge can join.”
But despite his conservative politics, Randy Smith has been more stringent on who has “standing.” Before the Prop 8 case went to trial, Smith concurred in a 9th Circuit opinion that the right-wing Campaign for California Families could not intervene in the case. Some have argued that he would similarly argue against “standing” here.
I’d be surprised, however, if Judge Smith were to side against the Prop 8 campaign on “standing.” In the prior decision (which he did not author, but did endorse), the focus was on whether another right-wing advocacy group could intervene – when the Prop 8 campaign was already allowed in the case. Smith sided against the Campaign for California Families, because “any differences [between the two groups] are rooted in style and degree, not the ultimate bottom line. Divergence of tactics and litigation strategy is not tantamount to divergence over the ultimate objective of the suit.”
Therefore, my prediction is that the Ninth Circuit will grant standing to Prop 8 supporters – despite clear legal precedent from the U.S. Supreme Court in Arizonans for English Only that gay marriage opponents must prove they have a “direct stake” in the outcome that affects them on more than mere ideological grounds. And that decision could later be reversed.
But on the merits of the appeal, Judge Walker’s ruling that overturned Prop 8 had over 80 findings of fact that cannot be reversed by a higher court. Which is why the case against Prop 8 – that it has no rational basis, and was motivated by animus of gays and lesbians – is very strong.
Paul Hogarth has a J.D. from Golden Gate University. He is an attorney licensed to practice law in California, but this piece is not intended as legal advice. He was a summer intern for Equality California in 2005, organized volunteers in 2009 for the “No on 1” campaign in Maine, and has helped live-blog the Prop 8 trial for the Courage Campaign.
Republished with permission from BeyondChron.