Professional Documents
Culture Documents
Filed: For Publication
Filed: For Publication
FILED
FOR PUBLICATION JAN 04 2011
v.
and
Defendants - Intervenors -
Appellants.
2
KRISTIN M. PERRY; SANDRA B. No. 10-16751
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-VRW
Plaintiffs - Appellees,
Plaintiff - Intervenor -
Appellee,
v.
Defendants,
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KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON;
PROTECTMARRIAGE.COM - YES ON
8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8; HAK-SHING WILLIAM
TAM,
Defendants - Intervenor,
and
Movants - Appellants.
matter that is highly controversial in this country and in which the American
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under the Fourteenth Amendment of the United States Constitution that is of
importance to the entire public. Oral argument before this court was viewed on
television and the Internet by more people than have ever watched an appellate
court proceeding in the history of the Nation,1 and by innumerable law students
public may wonder why that issue is of such great importance, and what the
significance of our standing decisions is. For that reason, while I agree entirely
with our two dispositions, both of which are filed in the names of all three of us
who are considering the appeals and both of which represent our unanimous views,
The standing problem arises out of a trend in our judicial system over the
past few decades. It is a trend that emphasizes technical rules over deciding cases
1
See, e.g., Tim Rutten, Monday’s Must-See TV, L.A. T IMES (Dec. 7, 2010);
Ashby Jones, On the Prop. 8 Arguments and the Cameras-in-the-Court Debate,
W ALL S TREET J. L AW B LOG (Dec. 7, 2010); Lisa Leff, Televised Gay Marriage
Hearing Draws Wide Audience, A SSOCIATED P RESS (Dec. 6, 2010).
2
See, e.g., Public Information Office, U.S. Court of Appeals for the Ninth
Circuit, Proposition 8 Arguments: Coming to a Law School Near You (Dec. 1,
2010), available at
http://www.ca9.uscourts.gov/datastore/general/2010/12/01/Prop8_LawSchools.pdf
.
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on the merits, and indeed over the merits themselves. Our system now
other procedural bars that preclude courts from deciding cases on the merits, and as
a result increasingly limits the access of individuals to the courts. Members of the
public familiar with cases such as Brown v. Board of Education and Roe v. Wade
decided when a legal challenge was made to it in federal court. However, in these
times, before we are free to decide such important questions the parties must often
overcome difficult procedural barriers. Why Congress and the Supreme Court
have required them to do so is a subject for another day, although I have made my
views on the subject clear elsewhere.3 Here the question is simply whether there is
standing.
The standing problem, under current Supreme Court doctrine, affects this
case in several ways, all relating to the question of whether there is an intervenor
opposed to the district court’s decision that has the right to appeal it. Should it be
3
See, e.g., Stephen Reinhardt, Life to Death: Our Constitution and How It
Grows, 44 U.C. D AVIS L. R EV. 391 (2010); Stephen Reinhardt, The Anatomy of an
Execution: Fairness vs. Process, 74 N.Y.U. L. R EV. 313 (1999); Stephen
Reinhardt, The Supreme Court, the Death Penalty, and the Harris Case, 102 Y ALE
L.J. 205 (1992); Stephen Reinhardt, Limiting Access to the Federal Courts: Round
Up the Usual Victims, 6 W HITTIER L. R EV. 967 (1984).
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held ultimately that there is no such intervenor, the consequences are unclear, other
than that we would be unable to review the district court decision on the merits;
what would follow thereafter could conceivably be a matter for future decision by
this court. All I can say now is that the issues concerning standing were wholly
There can be little doubt that when the Plaintiffs filed this action their
purpose was to establish that there was a constitutional right to gay marriage, and
they filed and the injunction they obtained determines only that Proposition 8 may
not be enforced in two of California’s fifty-eight counties. They next contend that
the injunction may not be appealed but that it may be extended to the remaining
fifty-six counties, upon the filing of a subsequent lawsuit by the Attorney General
4
See, e.g., Margaret Talbot, A Risky Proposal: Is It Too Soon to Petition the
Supreme Court on Gay Marriage, T HE N EW Y ORKER, Jan. 18, 2010, at 40; Jo
Becker, A Conservative’s Road to Same-Sex Marriage Advocacy, N.Y. T IMES,
Aug. 18, 2009, at A1 (“[B]inders stuffed with briefs, case law and notes . . . are
filled with arguments Mr. Olson hopes will lead to a Supreme Court decision with
the potential to reshape the legal and social landscape along the lines of cases like
Brown v. Board of Education and Roe v. Wade: the legalization of same-sex
marriage nationwide.”); Jesse McKinley, Bush v. Gore Foes Join to Fight Gay
Marriage Ban, N.Y. T IMES, May 27, 2009, at A1 (“In the end, the two lawyers
suggested, the case might take them, again, to the United States Supreme Court.”).
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in state court against the other County Clerks. Whether Plaintiffs are correct or
not, it is clear that all of this would have been unnecessary and Plaintiffs could
have obtained a statewide injunction had they filed an action against a broader set
of defendants, a simple matter of pleading. Why preeminent counsel and the major
law firms of which they are a part failed to do that is a matter on which I will not
speculate.
Next, the problem of standing would have been eliminated had the Governor
Whether their decision not to defend the initiative was proper is a matter of some
they possess that right. Once again, however, I express no ultimate view on the
question.
In any event, had Plaintiffs sued a broader class of defendants, there clearly
would have been parties who would have had standing to appeal the district court’s
decision, and who likely would have done so. Even had they not, it might not have
been difficult for those interested in defending the proposition to find an intervenor
with standing. Imperial County, one of the counties that voted in favor of
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so through a deputy clerk who asserted her own rights instead of through the Clerk
who might have asserted hers. Again, this was a most puzzling legal decision.
While we have not ruled as to whether the Clerk would have had standing, we have
held that a deputy clerk does not. There are forty-two counties that voted in favor
counties instead of relying on Imperial County they could have found a Clerk who
would have presented the issue whether a Clerk rather than a deputy has standing.
None of this means that ultimately there is no standing in this case. Because
initiative proponent’s authority and interests under California law. Although that
strong argument on this point. Thus, in the end, there may well be standing to
maintain this appeal, and the important constitutional question before us may, after
all, be decided by an appellate court – ours, the Supreme Court, or both – and may
and the inexplicable manner in which the parties have conducted this litigation may
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in the end not preclude an orderly review by the federal courts of the critical
millions of Californians who voted for Proposition 8 and the tens of thousands of
same-sex couples who wish to marry in that state. In the meantime, while we await
further word from the Supreme Court of California, I hope that the American
public will have a better understanding of where we stand today in this case, if not
why.
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