Issue:  Vol. 48 / No. 11 / 15 March 2018

Online extra: Judge doubts anti-gay groups can appeal Prop 8


Waiting in line at the clerk's office for their marriage license, Berkeley residents Danielle Peregory and Kelly Jones show their elation as the stay on Prop 8 is lifted Thursday, however, same-sex marriages are on hold pending an appeal to the 9th Circuit. Photo: Rick Gerharter
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The federal judge who ruled that California's ban against same-sex weddings is unconstitutional doubts anti-gay groups who support the law can appeal his decision in the case. And even if they have standing to file their appeal, the judge doubts they will succeed in overturning his ruling.

Contained within his order to lift the stay on his ruling next week, which was released today (Thursday, August 12), Chief U.S. District Court Judge Vaughn Walker wrote that he believes it is "unlikely" that the opponents of same-sex marriage will have standing to appeal his ruling before the 9th Circuit Court of Appeal.

Last week Walker found that Proposition 8, the voter passed constitutional amendment banning same-sex marriage in California, violates the rights of gays and lesbians under the U.S. Constitution. He has stayed his decision until August 18 at 5 p.m., when Prop 8 will be lifted and the same-sex nuptials can begin unless the appellate court decides before then to reinstate the stay.

In his ruling today on lifting the stay, Walker said there is nothing within the record from the trial he conducted this past January to suggest the Yes on 8 campaign will win on appeal.

"Based on the trial record, which establishes that Proposition 8 violates plaintiffs' equal protection and due process rights, the court cannot conclude that proponents have shown a likelihood of success on appeal," wrote Walker.

Walker also questioned whether there would even be an appeal of his decision.

Because Governor Arnold Schwarzenegger and Attorney General Jerry Brown both support Walker's decision to allow same-sex couples to wed, they have no plans to appeal the judge's ruling. As the Bay Area Reporter reported in today's issue, lawyers for the plaintiffs involved in the case, known as Perry vs. Schwarzenegger , and for the city and county of San Francisco have argued that only the state officeholders can appeal the ruling, not the backers of the anti-gay law.

Walker appears to agree with that legal reasoning, as he wrote in his stay order that the Yes on 8 groups "may have difficulty demonstrating" they have standing in the case.

In order to be granted what is known as Article III standing, Walker notes that the ballot measure's proponents, known as, must show "a concrete and particularized injury that is actual or imminent."

Walker concluded, "nothing in the record shows proponents face the kind of injury required for Article III standing."

He also notes that while the Yes on 8 group campaigned for the constitutional amendment to be passed at the ballot box in 2008, it is not the party responsible for enforcing or implementing Prop 8. As the state court explained in its ruling on Prop 8, Walker notes that "the regulation of marriage in California is committed to state officials."

Just as Mayor Gavin Newsom had no authority to marry LGBT couples in the winter of 2004, Walker said private citizens such as the Yes on 8 leaders have "still less" authority to issue marriage licenses. And just because he allowed to defend Prop 8 at the trial level after state officials refused to do so, Walker said that does not automatically defer upon them standing to appeal.

"Proponent's intervention in the district court does not provide them with standing to appeal," Walker wrote in his stay order. "The Supreme Court has expressed 'grave doubts' whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative."

David Tsai, a local attorney who is co-chair of the LGBT legal group Bay Area Lawyers for Individual Freedom, said Walker is correct in concluding that the Prop 8 proponents cannot appeal the case.

"Really, there is no standing for them to be in federal court," said Tsai, who is with the law firm of Townsend and Townsend and Crew. "I think it is an interesting question because what if they find the Prop 8 backers have no standing? It is an easy way for the 9th Circuit to get rid of the case entirely. Then that will be an issue they appeal to the Supreme Court but the Supreme Court might not take it up." lead attorney Charles Cooper did not address the standing question in his motion urging Walker to keep the stay of his ruling in place. He has notified the 9th Circuit that he will appeal Walker's ruling and will likely address the standing issue at that time.

But Walker doubts the appellate justices will even hear the matter if state officials don't appeal.

"As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents' appeal," wrote Walker. "In light of those concerns, proponents have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponent' standing weighs heavily against the likelihood of their success."

Imperial County has asked the courts for it to be granted standing to appeal Walker's decision. But it is unclear whether the southern California county has legal ground to intervene in the appellate process.

It is likely it will be up to the U.S. Supreme Court to ultimately rule in the matter. As Margaret Russell, a professor of constitutional law at Santa Clara University, told the B.A.R. this week, she doubts that the conservatives on the nation's highest court will allow Walker's decision to stand.

She predicted that Justice Antonin Scalia, in particular, would find a legal foundation "equivalent of throwing his body on the railroad tracks to prevent this from being upheld."

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