[Updated] So today, the Ninth Circuit reversed Judge Walker’s stay ruling, meaning that Prop 8 will remain on the books pending the Ninth Circuit’s decision on the merits appeal.  This seems like a decent excuse to dust the blog off and try to explain (in slightly more than 140 characters) the standing issue in a bit more detail.

It would be a mistake to look at today’s ruling as any significant win for the Bad Guys (the Prop 8 sponsors, who successfully intervened at trial to defend Prop 8).

Today’s Ninth Circuit’s order put the case on an expedited track, with oral argument scheduled for the first full week of December 2010.  Most interestingly, the Ninth Circuit’s order directed the Bad Guys to brief the standing issue raised in Judge Walker’s stay ruling:

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

(Aug. 16, 2010 Order, at 2.)  The fact that the court included this language in its order suggests strongly that, at a minimum, it’s at least taking very seriously the argument that it lacks subject-matter jurisdiction over the Bad Guys’ appeal.

So… standing.  The requirement of standing comes out of the fact that courts (and the federal courts especially) don’t like to waste their time.  So, as Emily Bazelon explains, the doctrine of standing says that if you’re going to bring a case before a court asking it to do something for you in that case, you must “have a real, not conjectural, injury, which the lawsuit you’re bringing can redress.”  The immediate problem for the Bad Guys, then, is that they are the only defendants appealing from Judge Walker’s ruling–the government defendants refused to defend the law at trial and have said they will not appeal the decision–and prior cases seem to suggest that a sponsor of a ballot initiative does not have standing to defend the law he worked to pass.

If the Ninth Circuit and/or the Supreme Court, based on these prior cases relating to ballot initiatives, holds that the Bad Guys have no standing to bring the appeal, it will likely dismiss the appeal for lack of subject-matter jurisdiction (i.e., that it had no power even to hear the appeal), which would mean that Judge Walker’s ruling regarding Prop 8 would stand as good law.

So that would be a win for the good guys, right?  If you live in California, I’d say so:  Walker’s ruling striking down Prop 8 as unconstitutional would go into effect.  Outside of California, however, it’s less clear that the decision would have all that much direct impact in influencing future cases.  As an initial matter, unlike the Ninth Circuit (whose legal precedents are binding on all district courts in California, Washington, Oregon, Arizona, Nevada, Idaho, Montana, and Hawaii) and the Supreme Court, no other judge would be required to adopt any of Judge Walker’s broader legal conclusions, including his interpretations of the Equal Protection and Due Process Clauses.

Still, Judge Walker’s decision would remain on the books and future plaintiffs challenging other gay-marriage bans would likely cite to the case to support their arguments.  In such circumstances, those future plaintiffs effectively would be saying to those courts, “This case is, in all important respects, factually similar to the Prop 8 case, and Judge Walker’s legal reasoning is persuasive, so you should adopt it here.”  The problem is that a judge disinclined to follow Judge Walker’s lead might very well say that his case is factually distinguishable and decline to follow the Prop 8 ruling on that basis.  Recall, in this vein, that the Bad Guys in the Prop 8 case did such a terrible job defending the law that they barely even attempted to put on any evidence supporting their assertions of the various harms that would result from allowing gay marriage, and–worse still–on cross-examination, their own witnesses made a number of key admissions severely undermining their position.  In future cases, the bad guys presumably would be better prepared and wouldn’t make a lot of those same mistakes, and they would use that as a basis to distinguish their case as significantly different from the Prop 8 case.  In this way, the total annihilation of the Bad Guys in the Prop 8 case could be the one thing that allows the bad guys to live to fight another day.  This is probably why you’re seeing some murmurings on the right that perhaps it might be better to concede defeat in California and do a better job in future cases, the idea being that they could pick a case with a better factual record to bring up to the Supreme Court.

Of course, the Ninth Circuit could simply find that the Bad Guys do in fact have standing to appeal and proceed to take up the appeal on the merits.

But the standing issue could produce a third outcome.  It’s possible that the Ninth Circuit could say that just as the Bad Guys lacked standing to appeal, they also lacked standing to participate at trial as the only (active) defendants before Judge Walker.  In that circumstance, the likely result is that the Ninth Circuit would basically tell Judge Walker to start over with a new trial without the Bad Guys.  If the government defendants continued to refuse to defend Prop 8 (note that at his point California could have a new governor and attorney general), the likely result of sending the case back to Judge Walker would either be a judgment entered with the consent of all parties striking down Prop 8, or (more likely) a judgment for the plaintiffs on an unopposed motion for summary judgment in which the judge accepted all of the plaintiffs’ factual allegations as true.  If Judge Walker were to issue a decision granting plaintiffs summary judgment, the ultimate legal rulings and result would almost certainly be the same, but the decision would no longer be based on the judge’s numerous and detailed factual findings, which numerous commentators argued helped the original decision’s chances on appeal.   (I agree, though I am less convinced than I once was that an appellate court otherwise inclined to reverse Judge Walker–be it the Ninth Circuit or the Supreme Court–will be detained for long by his findings of fact.)  At that point, the new decision would then be teed up for an appeal on the merits, which potentially could lead to the Supreme Court.

I think it’s a no-brainer for Boies and Olson to contest the standing issue: their clients are California individuals who want to get married, so their goal has to be to get rid of Prop 8, whatever the means.  If they win on standing and the appeal is dismissed, they win and Prop 8 is off the books.  If they lose on the standing issue, they’ll just end up litigating the appeal on the merits, no worse for wear.  The worst-case scenario is that the court sends the case back down for a new trial, in which case they will almost certainly win again, and the case presumably will then go back up on appeal.  They will have lost a bit of time at that point, and the new decision on retrial may be marginally less likely to survive on appeal without the findings of fact, but the upside of an outright win on standing strikes me as simply too good an opportunity pass up.

So, @seldo and @eparillon, I can only assume I’ve now fully answered any questions you might ever have concerning the Prop 8 case, or any other legal matter whatsoever.  Also, you now owe me approximately $1800 for my time.

(Much of what I wrote here is based on Jonathan Adler’s post at Volokh or the links collected therein.)

Update – Supreme Court Review: Unlike the Ninth Circuit, the Supreme Court has discretion over which cases it will hear on appeal.  There are a couple of different ways in which the standing issue could end up before the Supreme Court.  If the Ninth Circuit dismisses the appeal for lack of standing, the Bad Guys may ask the Supreme Court to take up the standing issue.  Similarly, if the Ninth Circuit holds that the Bad Guys never had standing to participate at all, both Boies and Olson and the Bad Guys could theoretically cross-petition the Supreme Court to review the standing issue.  (Boies and Olson would be asking the Supreme Court to say the Bad Guys had standing at trial but not on appeal, and the Bad Guys would be asking the court to say they’ve always had standing at all phases.)

If the Supreme Court decided to review the Ninth Circuit’s standing decision, the possible outcomes broadly track the same three options as I outlined above:

(1) It could rule that the Bad Guys have no standing on appeal. That would end the case.

(2) It could rule that the Bad Guys had standing to appeal all along, in which case it would reverse the Ninth Circuit and then send the case back to the Ninth Circuit, which would then have to decide on the merits.  The parties could then go back to the Supreme Court to ask it review the Ninth Circuit’s merits decision.

(3) If it thinks the Bad Guys had no standing to participate at trial, it would order that the case be sent all the way back to Judge Walker for a new trial without the Bad Guys.

So if your goal is to get the merits decision up to the Supreme Court as quickly as possible (I’m not 100% sold on this yet), the quickest way for that to happen is for the Ninth Circuit to hold that the Bad Guys do have standing to appeal and to reach the merits in one fell swoop.  (The Supreme Court is more likely to accept the case for review if the Ninth Circuit affirms Judge Walker’s merits decision than if it reverses.)  But even here, if the Ninth Circuit did issue a ruling deciding both the standing and merits issues, there’s no certainty the Supreme Court would reach the merits.  It could always decline to take the case, agree to hear only the standing issue, or take the case on both standing and the merits but rule standing only (though that last case is really only possible if the Supreme Court holds the Bad Guys had no standing to appeal (ending the case) or that they never had standing to participate at all (resulting in a new trial without the Bad Guys).  [8/17 8:54a]


  1. […] comments This post responds to some questions sent in by a couple of people following up on my previous Prop 8 post. So here are 1400+ more words about standing, intervention, and the “case or […]

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