Why the technical "standing" issue properly decides the gay marriage appeal.

The law, lawyers, and the court.
Dec. 6 2010 8:00 PM

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.

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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.

The case of those who were supporters of the passage of Proposition 8 is harder. They were allowed to participate in the trial court and there is some equity in suggesting that they have the right to defend the proposition they championed. They did participate in successfully defending Prop 8 in an earlier state court lawsuit, Strauss v. Horton. Their participation in Horton, however, made more sense because that suitclaimed that Proposition 8 was not validly enacted as an amendment to the California Constitution. But this case now accepts the fact that the California Constitution has been now amended by the passage of Proposition 8. The issue here is whether the resulting barrier to same-sex marriage violates the rights of the plaintiffs under the United States Constitution. And on this issue, unlike the earlier question of whether Proposition 8 was a valid exercise of the state's referendum power, the referendum sponsors themselves don't have any "personal stake." This case is largely about federal constitutional claims of a right to marry that could just as easily be brought years from now, long after the Proposition 8 sponsors have departed the scene forever.

That neither of the parties before the court today had standing to appeal Judge Walker's decision seems right to me. What is less clear is what, assuming the appeals court agrees with me, his unreviewed decision would actually resolve. What is the effect of an unappealed decision of a single federal district judge? Obviously, it would mean a final victory for the two couples who brought the suit. But what does it mean beyond that? Legally, perhaps little. Practically, virtually everything.

The attorney general will no doubt direct all state officials to grant licenses to same-sex couples. A single judge's unappealed decision, however, cannot irrevocably bind the future. If the Court of Appeals or the U.S. Supreme Court were to decide any other gay marriage case from any other state and were to rule against gay marriage, future California state officials could go back into the district court and seek to reopen Judge Walker's judgment and permit the state once again to ban gay marriage. But I just don't believe that the ban would ever come back. I believe it extremely unlikely that any future governor, Democrat or Republican, would attempt to reopen this issue and reinstate the ban. What would protect the future of gay marriage in California is not so much a single judge's decision but a powerful social rule: the normative power of the actual. That is, what is seems right. If Judge Walker's decision were held to be final and unappealable, the 18,000 gay and lesbians who are now married in California (as a result of the months when gay marriage was legal there) will be joined by thousands and thousands more over the next few years. And at that point, as a matter of social and political reality, there would be no turning back.

That this enormous result could follow because no one had "standing" to appeal Judge Walker's decision would not be as "technical" as it may appear. In this case the issues of standing and the merits are in deep resonance with one other. The common issue linking both is the fact that no one else is injured when a gay couple is married. That is why the state has no rational reason to deny a license to gay and lesbian couples in the first place, and that is also why there is no injured party with standing to carry forward this appeal. In an alternative universe with a finite number of marriage licenses, a straight couple ordered to give up their marriage license in order to make one available for a gay couple would have standing to sue and to appeal. But in the world in which we live, a straight couple's right to marry remains unimpaired by gay marriage. This case will be over—indeed it should be over—because no one has a legal interest in denying someone else's happiness.

Walter Dellinger is an attorney 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.

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Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

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