Host Cy Musiker spoke to U.C. Davis law professor Vikram Amar about what happens next to Proposition 8.
Musiker: Judge Walker seems to be taking a lot of jabs at the defendants in the Prop 8 case.
Amar: Well one of the things that this ruling does is it raises a question that should have been raised earlier but hadn't been raised until now and that is whether the sponsors of Proposition 8 enjoy what we call standing. Judge Walker suggests that he has some doubt about whether the Ninth Circuit will even accept an appeal from people who aren't government officials and people who are not subject to Judge Walker's order.
Musiker: So in fact the judge is sort of laying the legal groundwork to undermine that standing. In fact he notes also that the governor and the state attorney general have petitioned the court to allow the marriages and they have standing.
Amar: They do. But the interesting point, and I don't think that Judge Walker deals with this yet, is that if the sponsors of Proposition 8 lack standing to appeal they probably also lack standing to participate in the trial. And therefor we have a trial which was not really an adverse case or controversy under the constitution because as you pointed out the attorney general and the governor have not really defended proposition 8. So if the Ninth Circuit were to agree that the sponsors of Prop 8 lack standing it's very possible to me that they would wipe the slate clean on the trial and say we never should have had a trial that wasn't properly a federal court trial and we go back to square one where Judge Walker would have to rule without the trial just based on the papers filed by the plaintiffs and the attorney general and the governor.
Musiker: The next stop for those who back the same-sex marriage ban is the Ninth U.S. Circuit Court of Appeals. So what are the chances they can get a stay of the judge's decision from that court?
Amar: I wouldn't be on it but I wouldn't bet against it cause there's a lot of complicated issues the ninth circuit has to sort out. One is the one we mentioned earlier whether the defenders of Prop 8 have standing to even be in this case and if not what do we do about it. There's another issue about whether a trial judge has the power to issue an order that applies to people other than the plaintiffs. We've all been assuming that all same-sex couples can get married once Judge Walker invalidates Prop. 8 but there is some law in the Ninth Circuit that says unless we're talking about a class action, that has been certified as a class action, then a trial judge can issue a remedy only for the named plaintiffs. That is to say only for the same-sex couples represented by Ted Olson and David Boyes. So that's going to be another issue the Ninth Circuit has to sort out and it might buy itself some time by issuing a stay so it can look at some of these issues. So I won't be shocked if the Ninth Circuit does issue a stay although I would never bet on the Ninth Circuit undoing what a trial judge court does in an area like this.
Musiker: Profesor Amar you've argued that the Ninth Circuit is likely to the be key court in the Prop 8 battle and not the U.S. Supreme Court. Why do you say that?
Amar: Well I say that if the Ninth Circuit reverses Judge Walker on the merits and upholds Proposition 8 - I don't see the Supreme Court wanting to get into this at all. Everyone, as you point out, assumes the Supreme Court will be where this ends up, that's true only if the Ninth Circuit affirms Judge Walker and invalidates Prop 8. If Prop. 8 gets upheld I don't think either the liberals or the conservatives on the Supreme Court want to touch this issue right now. They'd be happy to wait for years and years as other states and other courts consider it.
The case now goes before a special "motions panel" of three judges at the appeals court, the largest and busiest federal appeals court in the nation with jurisdiction over nine western states.
The panel consists of two judges appointed by Democrats and a third by a Republican.
President Ronald Reagan appointed Judge Edward Leavy to the appeals court in 1987. Leavy, who is semi-retired, has served as judge in the state and federal courts in Oregon since 1957.
This interview was edited.
Read Amar's article on the ruling.