Vikram David Amar

An Additional Post-Mortem on the Ninth Circuit Oral Argument in the Proposition 8 Case

By VIKRAM DAVID AMAR

Friday, December 17, 2010

Analysts of the same-sex marriage legal saga are trying to read the tea leaves from the U.S. Court of Appeals for the Ninth Circuit's oral argument held last Monday. The argument took up the federal constitutional challenge to California's Proposition 8, a state constitutional initiative limiting marriage to a union between a man and a woman.

My FindLaw colleague Professor Michael Dorf offered some insightful commentary on the oral argument on this site earlier this week; Professor Dorf's column (along with many of my own, including the one posted here) provides much of the essential background that any reader interested in the Proposition 8 litigation should consult.

In my column today, I offer additional observations on the hearing. Some of my suggestions build on Professor Dorf's thoughts, and some of my reactions diverge from his take.

Issue One: Standing and Certification

As followers of the Proposition 8 case know, there is a serious question about whether the official sponsors of the initiative have standing in federal court to appeal the ruling by U.S. District Court Judge Vaughn Walker that Proposition 8 violates the Fourteenth Amendment. After all, Proposition 8's sponsors were not elected by the people of California to speak on their behalf, the way the Governor and Attorney General are.

On this standing question, the Ninth Circuit judges floated an interesting possibility at oral argument: The federal courts could "certify" a question to the California Supreme Court to get its view about whether California state law authorizes sponsors to defend initiatives when elected officials (i.e., the Governor and the Attorney General) do not. (Certification is a device by which state courts give answers to federal judges on the meaning of unclear state law when state-law interpretation is central to a question the federal court is being asked to decide.)

In theory, the certification device helps federal courts avoid misunderstanding, and thus misapplying, state law. In practice, however, certification often doesn't work particularly well. For starters, state courts frequently don't answer the certified questions clearly. There are many reasons why state law might not be so obviously clear that federal courts can figure it out on their own; one such reason might be that state courts (for political or other reasons) don't want to provide clear answers to some state-law questions. And if the ambiguity in state law is semi-intentional, it is not uncommon for state courts to passively resist providing the guidance that certification seeks.

Moreover, there are other reasons why, in the Proposition 8 case in particular, certification -- while interesting -- may not ultimately be a productive route. Most importantly, it is not clear that any answer the California Supreme Court might give about state-law authorization for initiative sponsors to defend would address the key question the Ninth Circuit must resolve: whether Article III of the federal Constitution, which limits federal courts to "cases" or "controversies" is satisfied if the only parties on one side of a litigation are an initiative's sponsors.

It is true that the United States Supreme Court has hinted that a state law that "appoint[s] initiative sponsors as agents of the people of the state" might suffice to confer standing in federal court. But even if the California Supreme Court says that California law in practice permits sponsors to defend in state court when elected officials won't do so, such a practice, especially when it is not widely known, might not constitute the kind of "appointment" that is necessary to qualify in federal court and to overcome the fact that initiative sponsors aren't generally elected by the people. (For more background on the virtues of formal election or appointment of agents purporting to represent the people, readers will find my earlier column posted here helpful.)

The Ninth Circuit Judges (and Professor Dorf) did seem troubled by the fact that, if sponsor standing in federal court is not permitted, an initiative adopted by the people might die simply because elected officials decide not to defend it. As Professor Dorf put the point, "[i]ndeed, the whole point of the ballot-initiative process is to permit the People to adopt laws and state constitutional provisions that their elected officials do not favor." But as my colleague Alan Brownstein and I have pointed out, there is a way of addressing that concern and still accommodating the discomfort that many rightly feel about allowing the self-appointed sponsors of an initiative to speak on behalf of an electorate that might not agree with them on all particulars. Our middle-ground proposal was to require a plain statement -- that is, one either made explicit in state law or placed in the text of particular initiatives -- that deputizes sponsors to defend when elected officials don't. That way, sponsor standing can exist to make the initiative device meaningful, but the people who adopt an initiative at least can know for sure who might be speaking on their behalf in federal court, and can then take that into account when deciding whether to enact the measure.

Finally, I should note one underappreciated possible virtue of the certification route in the Proposition 8 matter -- certification will take time. Many (myself included) think that the Proposition 8 challengers would have been wiser to wait a bit longer before bringing their case, so that the issue of same-sex marriage could percolate in other states for more time before the U.S. Supreme Court takes it up. Certification -- because it can consume well over a year -- may slow the Proposition 8 litigation down in a way that might be beneficial.

Issue Two -- Remedy: What Should Be Done If No Party Defending Proposition 8 Has Standing?

Professor Dorf astutely observed that "perhaps the most surprising aspect of the [standing] portion of the oral argument was the nearly complete inattention to a key remedial question: If the court finds [that the sponsors and all others who are trying to intervene lack standing] what happens next?"

Although the parties disagree on what should happen in this instance, it remains hard for me to see how the Ninth Circuit could avoid vacating (that is, in effect, erasing) the entire opinion issued by District Judge Walker. If there is no Article III case or controversy at the Ninth Circuit today, then how could there have been one at trial? And how could any opinion resulting from a trial that was not a case or controversy -- as the U.S. Constitution, in Article III, requires for federal-court jurisdiction-- possibly stand?

To be clear, vacating Judge Walker's opinion would not leave the Proposition 8 challengers without recourse; they would simply win a default judgment giving the named plaintiffs only the narrowest form of relief they seek -- their particular marriage licenses. But any judicial order that is broader than that would be hard to square with the very essence of any determination that the sponsors lack constitutional standing.

And the U.S. Supreme Court has suggested in a variety of settings that courts must vacate judgments where there was no case or controversy at the time of adjudication. Perhaps most directly relevant is Karcher v. May, a key case in the standing battle. There the U.S. Supreme Court held that individual state legislators, representing themselves and not their legislative bodies, lacked Article III standing at the Supreme Court to defend a statute that was not being defended by the state's elected executive officials.

These legislators had been the leaders in their respective legislative chambers before the last election, and in their capacity as legislative leaders they had represented each of the legislative houses in defending the statute in the litigation in the lower federal courts. After the U.S. Supreme Court determined that these individual legislators -- who no longer represented their legislative bodies -- lacked standing, it confronted the question of whether it had to vacate the rulings in the lower courts. The Court concluded that it did not need to erase the lower-court rulings, but only because it found the standing of the legislators on behalf of the legislature itself in the lower courts to be valid: "Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant."

The implication of this language to me seems to be that if there had been no proper standing in the lower courts, then vacating the lower-court rulings would indeed have been the required course.

Issue Three: The Relevance of Romer

One of the suggestions of the Proposition 8 challengers has been that the repeal of an existing right under a state constitution is more troubling than the failure ever to recognize the right in the first place, and that since Proposition 8 is a repeal, it is particularly problematic.

But as I pointed out in an earlier column (and as Professor Dorf agrees), this reasoning seems foreclosed by the U.S. Supreme Court case of Crawford v. Los Angeles Board of Education, where the Court made clear that a state can experiment in the direction of creating rights without having to worry about whether it is forever locked into recognizing those rights.

But Professor Dorf finds a different U.S. Supreme Court case -- Romer v. Evans -- to be of more help to the Proposition 8 challengers. In that 1996 ruling, the Supreme Court struck down a Colorado ballot measure, Amendment 2, that withdrew the right of gays and bisexuals to assert claims of discrimination based on their sexual orientation. Professor Dorf views that case as being driven by the Court's finding of impermissible motive on the part of the Colorado voters, and argues that an impermissible motive might also plague Proposition 8 (especially if Judge Walker's trial findings are to be credited.)

I view Romer as somewhat more complicated, and as not necessarily speaking to the issue of gay marriage. Put to one side the fact that Amendment 2 targeted people because of their gay or bisexual "orientation." (The orientation/conduct line with respect to sexuality might be a hard one to draw, and it is tough to decide whether marriage definitions are about orientation or conduct.) I see two features of Amendment 2 -- breadth and unusualness -- that were important to Romer's result but that are not present in Proposition 8.

First, let's consider breadth: Amendment 2 was breathtaking in its scope, preventing gays and bisexuals from invoking the law's protection across the entire range of the public and private spheres. Public and private education, employment, housing, etc., were all covered by the Colorado initiative. By contrast, Proposition 8 speaks to marriage and marriage only. Marriage is, of course, a hugely important arena, but it is still only one arena. And Justice Kennedy, writing for the Court in Romer, repeatedly commented on the problematic "sweeping and comprehensive" character and "reach" of the Colorado initiative.

Second, and perhaps more important, there is the issue of unusualness: Amendment 2 was one of a kind. As far as I know, no state had before, or has since, tried to pass a law seriously resembling it. By contrast, Proposition 8 -- no matter how unjust it seems to me and other opponents -- is in the national mainstream; more than 40 states refuse to confer the marriage label on same-sex unions.

I am not arguing, of course, that if enough people are violating the Constitution, the violations should be overlooked. Instead, I am observing that the U.S. Supreme Court, especially in the area of fundamental liberties of autonomy and intimacy, has historically felt more comfortable proclaiming a national right when there is clearly a national trend in the direction of right being asserted.

For example, by the time the Court recognized a federal right to interracial marriage in Loving v. Virginia in 1967, Virginia was, as the Court itself noted in its opinion, one of only 16 states that prohibited and punished marriage between the races. And over the previous decade-and-a-half leading up to the case, more than a dozen states had repealed their bans on interracial marriage. Even in the context of gay rights, the law struck down in Romer was, as I've just mentioned, very unusual, if not unique. And the Texas law banning gay sex that was struck down in Lawrence v. Texas -- the other blockbuster Supreme Court case involving gay rights -- was also very much of an outlier; Justice Kennedy's opinion in that case pointed out that there were only four states that had and enforced such laws.

In saying all of the above, I do not mean to contend that the Supreme Court couldn't use Romer to invalidate Proposition 8. Rather, I am suggesting that the Justices who voted to strike Amendment 2 could easily see the two situations as distinguishable, at least right now.


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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