Vikram David Amar

Now That the Proposition 8 Appellate Judges Are Known, What Is The Likely Outcome?

By VIKRAM DAVID AMAR

Friday, December 3, 2010

Now that we know the identity of the three judges of the U.S. Court of Appeals for the Ninth Circuit who will hear the appeal in the case challenging Proposition 8 (California's ban on same-sex marriage), observers are trying to handicap the outcome. I too am guilty on occasion of getting caught up in the horserace aspect of litigation prediction, but in this column I explain why complex lawsuits, like racing forms, aren't for the faint of heart.

The Composition of the Ninth Circuit Panel

Guessing precisely how California's same-sex marriage legal saga will end up has been dicey business from the start; the litigations have already taken several dramatic and unexpected turns over the past five or six years. And the ideologically diverse composition of the three-judge panel in the Proposition 8 federal appeal doesn't make prognostication any the easier.

One member of the panel, Stephen Reinhardt, is by many accounts the most prominent old-school left-leaning judge on the federal bench -- a liberal lion who has served as an active member of the Ninth Circuit for over 30 years since Jimmy Carter appointed him at the end of Carter's presidency.

Another member, N. Randy Smith, was an experienced Idaho state court jurist before George Bush placed him on the federal circuit a few years ago. He has a less well-developed federal court of appeals track record, but his general background and prior decisions would seem to indicate he is instinctively quite conservative in his legal philosophy.

And the third member, Michael Daly Hawkins from Arizona, is a Clinton appointee who is considered, as are many Clinton appointees to the federal appellate bench, somewhat to the left of the national center, but generally moderate in philosophical instincts.

The Two Big Legal Questions Before the Panel of Judges

A panel comprised of a liberal, a conservative and a moderate would be hard enough to read in any big-ticket case. In the Proposition 8 dispute, things are far more complicated still.

One source of the complication is the fact that there are two substantial, distinct legal questions before the panel. The first is whether the sponsors of Proposition 8 have standing to defend the measure; if not (and if Imperial County also lacks standing), then, as I explained in my most recent column, Proposition 8 will likely die a quiet "default judgment" death in California (because neither Governor-elect Jerry Brown nor Attorney General-elect Kamala Harris will defend the measure.) But if Proposition 8 were to die this kind of quiet death, there would be no immediate legal implications beyond California's borders.

Only if the Ninth Circuit finds the sponsors have standing will it take up the merits of the constitutional challenge to Proposition 8 and decide the second question: whether there is a federal constitutional right to same-sex marriage.

On the latter question, perhaps it is reasonable to believe that "liberals" are more inclined to embrace a federal constitutional right than are "conservatives" (with "moderates" somewhere in between.) But on the standing question -- which concerns a somewhat technical doctrine about which I've written extensively here on FindLaw -- traditional ideological labels are less useful as predictive measures. This is partly because standing rules are often manipulated by judges -- both liberal and conservative -- for prudential reasons (including to pick the right time certain disputes should be resolved by the federal judiciary). And some liberals might prefer to see Proposition 8 die a quiet death than see it slain by the Ninth Circuit in a more prominent ruling on the merits, since the latter scenario is more likely to draw the generally conservative U.S. Supreme Court into the fray.

A Look at Judge Reinhardt's Likely Stance Alone Illustrates Why the Panel Holding Is Hard to Predict

But we don't even need to consider the overall makeup of the Ninth Circuit panel to see the complexity of this case and the difficulty of prediction. A look at just one of the panel members, Stephen Reinhardt, alone suffices to illustrate the intricacy of the litigation and its possible resolutions.

On the merits, Judge Reinhardt would probably agree with the challengers to Proposition 8 that the ban on same-sex marriage violates the federal Constitution. Indeed, although this fact has not yet garnered wide attention, he (along with Ninth Circuit Chief Judge Alex Kozinski, in a separate writing) has already expressed his opinion that the federal government's discriminatory treatment of same-sex couples, with respect to health-care benefits for spouses of employees in the federal judiciary, violates the Constitution.

While the Proposition 8 case raises a slightly different legal question than the health-care spousal benefits dispute raised, Judge Reinhardt is on record saying that he thinks discrimination against gays and lesbians by government is subject to so-called "heightened scrutiny," under which the government must produce a strong reason for the differential treatment. And most analysts, myself included, do not think bans on same-sex marriage can survive an honest application of heightened scrutiny.

But on the standing question, Judge Reinhardt has a personal track record that is harder to decipher. In particular, he wrote a Ninth Circuit opinion in the 1990s involving a challenge to an Arizona English-language-only initiative. That Ninth Circuit opinion conferred federal court standing on the initiative's sponsors. But it was that very opinion that was roundly criticized by a unanimous Supreme Court in language that has cast doubt on Proposition 8 sponsors' standing and that has caused the Ninth Circuit to devote so much energy to the standing question. (For much more on the standing issue, readers might want to consult this prior column and the earlier column to which it links.) Will Judge Reinhardt stick to his standing guns and hold that Proposition 8's sponsors do have standing? Or will he feel cowed by the unanimous, albeit non-binding, language from the Supreme Court in the Arizona case in 1997?

To be sure, many people describe Judge Reinhardt as somewhat defiant, but he also is the author of a well-known dissent in 1988, in Watkins v. U.S. Army, in which he said he felt constrained to follow a Supreme Court ruling even though he found it terribly wrong-headed. And it is interesting to note the context of that famous 1988 Reinhardt opinion: gay and lesbian equality rights. The case involved the Army's ban on gays and lesbians, and Judge Reinhardt dissented from a ruling by two other Ninth Circuit Judges (Judges Norris and Canby) striking that policy down. (Needless to say, the ruling by these two judges itself got undone; that is why we are still dealing with the "Don't Ask, Don't Tell" policy even today, although perhaps that policy will be rescinded soon by Congress.)

Finally, consider that the Supreme Court is thought to keep a particularly watchful eye on Judge Reinhardt (even more watchful than the eye some people think it keeps on the Ninth Circuit as a whole). His opinions have probably been reversed by the Supreme Court more times than those of any other sitting Circuit judge. That is partly because he's been around so long. But it's partly because he is reversed quite often. And he is also reversed lopsidedly quite often. In one Supreme Court year, his opinions were reversed unanimously -- that is, without a single Justice ruling in his favor -- in at least five cases, a whopping number given the rarity with which a lower court judge's rulings are even taken up by the high Court as a general matter.

So a Ninth Circuit ruling authored (or joined) by Judge Reinhardt invalidating Proposition 8 will likely catch the attention of the high Court and its law clerks all the more. (Remember, too, that the Supreme Court has already seemed to send a message that it is keeping tabs on this case when the Court unexpectedly -- and to my mind unjustifiably -- intervened a year ago, by a 5-4 vote, to stop U.S. District Judge Vaughn Walker from broadcasting the Proposition 8 trial to other federal court venues, in Hollingsworth v. Perry.)

Even if Judge Reinhardt would like to see a federal constitutional right to same-sex marriage recognized, will he think that a case in which he himself has played a large part is a good vehicle to accomplish that end right now, given the specter of Supreme Court review?

These and other questions will simply have to await the decision of the three-judge panel; its ruling will probably come down sometime during the first half of next year.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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