Analyzing the Prop. 8 Appeal

August 12, 2010, 5:48 pm • Posted by Lisa Pickoff-White
Comments (4)

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.

Filed under: Interview, Judge Walker, Lawyers
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  • Dan Rains

    Mr. Amar’s comment: “There’s another issue about whether a trial judge has the power to issue an order that applies to people other than the plaintiffs… There is some law in the Ninth Circuit that says unless we’re talking about a class action, then a trial judge can issue a remedy only for the named plaintiffs.”

    In this case, improbable. The need to certify a class is clearly inapplicable to a complaint for declaratory relief brought by a citizen involving the constitutionality of a state law binding all citizens in the state who are, by virtue of the proposed law, similarly situated and constitute—in effect—the class. Thus, no issue exists as to whether plaintiffs represent a class, and no certification must be made by a trial judge that plaintiffs represent a class. They clearly do. [FRCP Rule 23].

  • Roberto Ripamonti

    Agreed with above poster.

    I’ve also been curious why Walker (and the Plaintiffs) are waiting until now to raise the standing issue, considering it puts the entire merit of the trial itself at stake, and is a pretty obvious question when you’ve got the Gov. and the Attorney General both NOT defending the proposition. Why wasn’t this the first question raised?

  • Wayne

    I’m not so certain I agree with Amar on the issue of whether a class action certification was necessary. The distinction appears to be that the plaintiffs sued because a state constitutional provision violated their federal rights, and not just for a private remedy. For example, when Brown sued the School Board over the constitutionality of a state law providing for separate but nominally equal segregated education facilities, I do not believe that there was a class certification.

  • http://www.kupfermunz.com Andre kupfermunz

    The proposition 8 Debate!

    What puzzles me on the debate over Proposition 8 is that no one has taken the time to look at how marriage as we know it today became an institution in our civilization in the first place and whether or not the emergence of same-sex marriages is simply a natural evolution. Marriage has evolved over the centuries and most particularly after the Second World War, from being economically based to being relationship based and for that reason, at present, it is fair game for any two people to sanctify their love in wedded bliss.

    An overview:

    As long as our ancestors were gatherers and hunters, we cannot find a trace of an institution linking a male, a female and the upcoming babies. Copulation happened and the babies were integrated into the tribe.

    At some point, our ancestors realized that water was more abundant at the bottom of slopes and that edible vegetables were more present there than elsewhere.

    As soon as our ancestors got the connection between water and food, they settled close to these areas. The next stage was that they planted and replanted seeds. Farming was conceived and deliberate land ownership and use was created! Now manpower becomes meaningful to secure the use of the land and by extension, ownership of land AND manpower is paramount! Women produced the children (who would later become manpower for the farm), therefore a legal bond to the woman became an economic necessity as it rendered entitlement to the labor of the offspring. Marriage was the response!

    The genesis of the family unit was driven by economic necessity. Being sanctified by a religious authority gave marriage a social structure that enabled the crude economic purpose to be hidden.

    After the Second World War, the Western society has changed. Emancipation and economic self- reliance of women have become a new standard and the gay community has burgeoned and blended into the mainstream. Marriage is no longer an economic factor and is only driven by the religious sector as a bad habit — an outdated and irrelevant way to resist change.

    As society no longer depends on marriage to produce and raise children, marriage has evolved into an institution driven by the desire to love and relate, any opposition to Proposition 8 and same sex couple marriage is blatant discrimination against a person’s right to choose.