In cases we live blogged oral argument here, the Ninth Circuit Court of Appeals took its first steps toward resolution yesterday.
As a reminder, the cases involve the constitutionality of California’s Proposition 8 (officially Article I, Section 7.5) – a voter enacted amendment to the California constitution making marriage valid only between one man and one woman. The lawsuit was brought by two same-sex couples. The federal district court ruled the amendment unconstitutional under due process and equal protection grounds and entered an order permanently enjoining the law. Intervention by Imperial County, its Board of Supervisors, and the Deputy County Clerk/Deputy Commissioner of Civil Marriages Isabel Vargas was denied. The Official Proponents of Proposition 8 appealed the district court’s substantive ruling and the intervenors appealed the denial of intervention.
Appeal No. 10-16696 is the main appeal and Appeal No. 10-16752 is the intervenors' appeal.
Intervenors lacked standing in Appeal No. 10-16752
The first step the Ninth Circuit took yesterday in Appeal No. 10-16752 in a published opinion (here, by JJ. Reinhardt, Hawkins, and N.R. Smith) was to affirm (albeit on other grounds) the district court’s decision to deny intervention and dismissed the intervenors’ case for lack of standing.
As seemed apparent from the questions at oral argument (here), the court was not persuaded that the Deputy County Clerk would have standing where the County Clerk had declined to support the constitutionality of the amendment in the lawsuit. The Deputy did not claim to be – and was not – representing the interest the County Clerk (who, according the the Court, likely would have had standing ).
As to Imperial County and its Board of Supervisors, the Ninth Circuit similarly found no standing because neither possessed a significant protectable interest warranting intervention. The Board plays no role in marriage. Moreover, the court concluded that the County waived any argument that its interest in issues such as reducing teenage pregnancy, depression in young adults, and incarceration rates waived for failure to present the arguments (or a financial interest based on them) to the district court.
Question Certified to California Supreme Court in Appeal No. 10-16696
The second step the Ninth Circuit took was to certify a question to the California Supreme Court in the main appeal, No. 10-16696 (here, by the same panel with a concurrence filed by J. Reinhardt).
In addition to the issue of the constitutionality of Proposition 8, the main appeal once again also involves an issue of standing – that of intervenors “ProjectMarriage.com – Yes On 8, A Project of California Renewal, as official proponents of Proposition 8.”
The district court had granted the proponents intervention into the lawsuit.
According to the Ninth Circuit, “it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional.”
Thus, had there been California law on point (which the court stated it found none) – the intervention of the proponents may have otherwise ended in the same result as Imperial County, its Board, and the Deputy County Clerk.
We now await a decision from the California Supreme Court before there will be a resolution to this case from the Ninth Circuit.
J. Reinhardt’s concurrence (here) appears to warn that the manner in which the lawsuit was brought and conducted may preclude meaningful resolution of the important substantive issue the appeal presents and the ability for those issues to be challenged.
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