by Richard B. Vaughn, Esq.
On Tuesday (1/4/11) the Ninth Circuit Court of Appeals issued a ruling in the Prop 8 case. In short, the Ninth Circuit denied Imperial County's attempt to intervene in the case and also asked the California Supreme Court to clarify whether, under California law, the group that placed Prop 8 on the California voter ballot has a legal right to appeal the Federal District Court’s ruling that Prop 8 is unconstitutional.
In May 2009, two same-sex couples filed suit in the U.S. District Court for the Northern District of California challenging the constitutionality of Prop 8’s passage. The case was heard before Judge Vaughn Walker. Judge Walker permitted Prop 8's official supporters to intervene in the case as defendants. He also permitted the City and County of San Francisco to intervene as plaintiffs to represent their unique governmental interest in marriage equality. On the eve of trial, Imperial County also filed a motion asking to intervene in the case as a defendant. Judge Walker ruled in August 2010 that Prop 8 violates the due process and equal protection clauses of the U.S. Constitution and also ruled that Imperial County did not have the right to intervene as a defendant.
California's Governor and Attorney General decided not to appeal that ruling because they agreed that Prop 8 was unconstitutional. The supporters of Prop 8 and Imperial County both filed appeals with the Ninth Circuit Court of Appeals (which ruled this week).
The Ninth Circuit upheld Judge Walker's decision not to allow Imperial County or its Deputy Clerk to intervene in the case. In addition, the Ninth Circuit made clear in today's ruling that if the supporters of Prop 8 do not have the legal right to appeal Judge Walker's decision, then the appeal is over.
Therefore, the Ninth Circuit has asked the California Supreme Court to first help clarify whether California law gives Prop 8's supporters the right to pursue an appeal when the state's official representatives have made a considered decision not to appeal. Ultimately, the Ninth Circuit must decide whether the Prop 8 supporters have a right to appeal under federal law as well, but the state law analysis must come first. (The California Supreme Court does not have to answer this question, but it most likely will and one question is how long it would take to do so. If the California Supreme Court elects not to answer this question, the Ninth Circuit will reach it’s own conclusions about California law.)
If the Prop 8 supporters do not have the right under state law to appeal, then the Ninth Circuit will likely hold that the Prop 8 supporters do not have standing under federal law and would dismiss the federal appeal; and Judge Walker's ruling would stand - meaning same-sex couples would once again be able to marry in California.
Alternatively, if the Prop 8 supporters do not have the right under state law to appeal, the Ninth Circuit would still have to decide whether Prop 8's supporters meet all of the other criteria to have standing under federal law. If the Ninth Circuit determined the Prop 8 supporters did not have standing under federal law, then the appeal is over. If it ultimately holds that the Prop 8 supporters have standing under federal law, then the Ninth Circuit could reach the merits of Judge Walker's ruling that Prop 8 is unconstitutional.
Richard Vaughn is Managing Attorney of National Fertility Law Center. He and his partner, Thomas Woelfel, were married under California law in 2008 and are the proud parents, through egg donation and surrogacy, of twin boys Aiden & Austin.
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