Standing on Its Head
Why the technical "standing" issue properly decides the gay marriage appeal.
Also in Slate, Emily Bazelon sizes up the oral arguments in the Prop. 8 appeals case.
The Great California Gay Marriage Case of 2010 is over, and gay marriage won. In fact, it was over last summer when the state officials decided not to appeal.
Today's argument in the Court of Appeals for the 9th Circuit, Perry v. Schwarzenegger, was divided into a one-hour broccoli course about "standing," followed by a dessert of arguments on the constitutional merits of gay marriage. The latter was a lot more interesting, but I'll write here about the first hour because I believe that the standing issue should ultimately decide the whole case.
The standing issue has enough complexities to fill an entire law school course in civil procedure. But the simple, bottom line point is that California's ban on gay marriage, enacted by the voters as Proposition 8, is ultimately doomed because Gov. Schwarzenegger and Attorney General Brown declined to appeal Judge Vaughn Walker's decision last August striking it down. And the people who have stepped forward to attempt to appeal the decision in their stead lack a "personal stake" in the outcome of this litigation. The appellate court has no jurisdiction to review a judgment that has not been appealed by the real defendants.
To a lot of people—including perhaps two of the judges sitting on today's argument—this just doesn't seem fair. The process of lawmaking by popular referendum was designed as a way for people to bypass state officials and amend their state constitution at the ballot box. Here the people did so, and yet after a single judge ruled against the result of the referendum, the state officials who never liked Propostion 8 in the first place simply declined to appeal that ruling. Is that all it takes to thwart the will of the people? One of the judges asked that very question today.
Fair or unfair, however, a federal appellate court has no authority to hear an appeal when the real party/defendant doesn't want to keep defending the lawsuit anymore. And that is the case we have here. Two groups of people sought today to provide the defense of "traditional marriage" that the governor and the Attorney General had declined to advance. The first were "official proponents"—the citizens who had supported the passage of the Proposition 8 referendum enshrining opposite-sex-only marriage in the state constitution. The second were county supervisors and a deputy clerk from Imperial County who wish to deny licenses to same-sex couples. But neither had been sued, and neither had any legal stake in the outcome of the case.
The short answer as to why the deputy clerk from conservative Imperial County couldn't appeal is that she was not a party to the case and is not bound by the judgment. If she refuses to issue a license to a same-sex couple, she could not be held in contempt of Judge's Walker's order. She might well be bound by some forthcoming ruling of the state attorney general, but that doesn't give her the right to challenge a trial court judgment that doesn't apply to her at present.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.