Propping Up A Bad Decision

As widely expected and as I predicted last week, despite Judge Walker's blistering decision overturning California's same-sex marriage ban as patently unconstitutional, the 9th Circuit Court of Appeals has stepped in and issued an indefinite stay against Walker's order until they can hear the case in December.

The Ninth Circuit panel, made up of Judges Edward Leavy, Michael Daly Hawkins and Sidney R. Thomas, determined that a stay pending the appeal was appropriate.

The panel requested the first briefs to be filed in September and for the appeal to be heard in court in December.

Richard L. Hasen, a professor of law at the Loyola Law School Los Angeles, said the ruling “takes the heat off the Supreme Court,” which was likely to have been asked for an emergency stay by those who support Proposition 8 if the Ninth Circuit had not acted.

But Mr. Hasen added that the stay’s putting a halt to any potential marriages did not mean that the Ninth Circuit would necessarily rule in favor of Proposition 8.

“I don’t think that the granting of the stay means much, if anything, about how the Ninth Circuit will rule on the merits,” he said. “It won’t be the same panel deciding the merits as decided the stay motion.” 

Mr. Hasen added he believed that even supporters of same-sex marriage could see the logic of extending a stay. 

But the real question here may be the issue of standing.

One issues most likely to be settled by the appeals court is that of legal standing. Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown of California — named as defendants in the case — have voiced opposition to Proposition 8.

That left the defense of the measure primarily to its ballot sponsors, including the group Protectmarriage.com. Some legal experts have questioned, however, whether a group that is not charged with enforcing a law can be found to be responsible for defending it. 

Arnold and Jerry Brown certainly do have standing, but they refuse to defend the ban because they believe it is unconstitutional as well.  The larger question is not just if the Prop 8 defenders have legal standing, but whether a referendum-passed law or any law requires the state to defend a law it doesn't believe in or thinks is constitutional if it's challenged in court.

In other words, is Jerry Brown's choice as state AG to not defend the law a dereliction of duty, or is his professional opinion that the law is not constitutional mean that he's performing his duty to the state?

My personal feelings are that the ban doesn't past Constitutional muster in the least.  Judge Walker laid down some considerable arguments.  At the same time, that question of standing doesn't affect just the Prop 8 proponents, but the State of California as well.  Can a state be compelled to defend a law that it believes is unconstitutional if the traditional check and balance function of a Governor's veto is bypassed due to the law being a state constitutional referendum?

Does this call into question California's referendum process?  We'll see.  For now, same-sex marriages in California are on hold until the 9th Circuit answers some questions.  One of the questions the stay order specifically mentioned is for the Prop 8 people to show they had standing, and that means there's a chance the 9th may boot this one based on that alone.  Calitics:

It shows that the Court has serious doubts about whether the Appellants have standing.  Even better, the Court is expressing an opinion that its inclination is that the case should be dismissed. That being said, the panel that issued this Order (the motions panel) is not the same panel that will hear that case on the merits.  The merits panel will be selected shortly before December 6th and we don't know the three judges who will be on the merits panel.  But this is a very good sign that the appeal could be dismissed on the ground of standing alone.   

That of course would be appealed to the Supreme Court. Clearly both Judge Walker and the 9th circuit are far more worried about if the Prop 8 proponents have standing than if Jerry and Arnold should be compelled to defend the case.