Why California gay marriage ruling may not head to US Supreme Court

Do proponents of Proposition 8, California’s gay-marriage ban, have any legal standing to appeal last week’s federal court ruling declaring it unconstitutional?

US District Judge Vaughn Walker doubts it.

When Judge Walker decided Thursday to lift a temporary stay on his Aug. 4 decision that invalidated Proposition 8, he suggested that the legal advocates of the voter-approved gay-marriage ban did not meet the legal standards to appeal their case to the Ninth Circuit Court of Appeals.

Walker said they needed the state government’s support, which they don’t have, and to demonstrate that legalizing gay marriage will lead to immediate harm even though 18,000 same-sex couples are already legally married in California.

“As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal,” Walker wrote in his ruling Thursday that lifted the stay on his earlier decision.

Nonetheless, Proposition 8 supporters have already appealed both of Walker’s rulings – his decision on the constitutionality of the gay-marriage ban and the more recent ruling lifting the stay and clearing the way for same-sex marriages to resume in California on Aug. 18.

But if the appeals court agrees with Walker’s analysis of the legal standing of Proposition 8 proponents, this landmark case over a state gay-marriage ban, the first decided in a federal court, could end with his courtroom and dash hopes on both sides of the issue for having the US Supreme Court issue a definitive ruling on gay marriage.

Still, legal experts are unsure of how appellate courts – including the US Supreme Court – will come down on the "legal standing" issue and Proposition 8 backers are undeterred by Walker's dim view of their chances in higher courts.

"[We] are confident that the right of Americans to protect marriage in their state constitutions will ultimately be upheld," said Alliance Defense Fund Litigation Staff Counsel Jim Campbell in a statement. "It makes no sense to impose a radical change in marriage on the people of California before all appeals on their behalf are heard."

Brian Brown, president of The National Organization for Marriage, a major backer of national gay-marriage bans, says Walker’s insistence that proponents show the "specific harm" they would suffer should same-sex marriage resume in California is off base.

"California proponents have particular interest and particular rights," Mr. Brown says. "One of the enumerated rights of proponents in [California's] state constitution is to have the ability to organize and pass an initiative. Just as the legislature has the right to pass a law, so do the people."

Why Imperial County was left out of case

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown both declined to defend Proposition 8.

Absent other state government defense for the statute, Imperial County, Calif., filed to intervene. Two-thirds of voters in the county east of San Diego backed Proposition 8, and its board of supervisors voted in 2009 to intervene on its behalf. Walker denied that motion.

Brown says Walker stacked the deck in favor of same-sex marriage supporters by allowing San Francisco to intervene in the case but not Imperial County.

Accompanying his decision striking down Proposition 8, Walker wrote: "California law provides no basis for Imperial County’s assertion that it has an interest in California marriage law, much less that its interests here are not adequately represented by an existing California defendant.”

Imperial County has appealed the decision, but legal experts, including University of Southern California law professor David Cruz, say the county may run into more hurdles.

"Given that Prop 8 is a state constitutional amendment, it's not clear that a mere county-level government would be enough," says Professor Cruz. And even if it is allowed to join the case as an intervener, the county would need to prove that it stood to be adversely affected by the repeal of Proposition 8, he says.

Baker v. Nelson

Brown says Walker's personal bias will be evident to the Ninth Circuit when it considers the appeal of Protect Marriage. Particularly egregious, he says, is that Walker ignored the most obvious precedent, Baker v. Nelson, a Minnesota Supreme Court case dismissed by the US Supreme Court in 1972.

In that case, the high court dismissed the appeal of a same-sex couple who argued that by forbidding them to marry, the state's laws violated their constitutional rights to privacy, due process, and equal protection clauses. That dismissal is seen by some as a decision on the merits of the case because it came through mandatory appellate review, and thus an endorsement of marriage as between one man and one woman.

"The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them," wrote Proposition 8 backers in their filing with Ninth Circuit to request an indefinite stay of Walker's ruling until all appeals can be heard.

Cruz says neglecting to address Baker is not as black and white as Brown makes it sound.

"There are very different factual and legal backgrounds" between the two cases, Cruz says. "At the time Baker was decided, Supreme Court equal protection law was very different from as it stands today," he says.

"When the Supreme Court dismissed the appeal [in 1972], Minnesota didn't have anything resembling a domestic partnership law," he adds. "California had already extended rights of marriage to same-sex couples," he says, so the reason why Minnesota may not have allowed same-sex couples to marry is different than California's.