The long-awaited oral argument in Perry v. Schwarzenegger before the Ninth Circuit is over, and we all now begin what I expect will become an even longer wait for a decision. Who won? To my hearing (via radio), it's hard to imagine that any judge's inclination on the merits of whether Prop 8 is constitutional was altered by the arguments they heard. They may have had a bigger impact on how the court will rule (or defer ruling) on standing than on their view of the merits.
Judges Reinhardt, Hawkins and Smith peppered both sides with sharp questions, and overall, both sides acquitted themselves reasonably well. No knock-outs were scored in this round, and the judges admonished both sides repeatedly that they wanted yes, no or I don't know answers to their questions, not little speeches designed to be crowd-pleasers.
Bottom line, the primary questions that this panel will resolve will be:
- whether to certify the case to the California Supreme Court to help determine standing;
- whether to find that either the proponents (who litigated at trial) or an Imperial County deputy clerk has standing to bring the appeal;
- whether Prop 8 is unconstitutional on grounds that apply only to California;
- what constitutional standard of review to apply (assuming that they reach the merits); and
- whether the Supreme Court's decision in Romer v. Evans bars Prop 8 and perhaps other laws prohibiting same-sex marriage.
Most significant to the standing point, which was argued first, Judge Reinhardt strongly suggested that he was inclined to certify a question to the California Supreme Court to help resolve whether the proponents of Prop 8 had standing to appeal Judge Walker's order. That means that the Ninth Circuit will suspend its consideration of the issues until the California Supreme Court answers the question of whether, under state law, the proponents of a ballot initiative would have standing to defend it in a context in which state officials decline to do so. (Generally, private citizens lack standing to participate as a defendant in a challenge to a law, but here both the governor and AG opted not to appeal Walker's decision.)
If I had to bet on what the next stage in this saga would be, I would bet that this part of the case will be referred to the state supreme court. (This is not unusual when a federal court has to resolve the meaning of a state law in order to get to the federal question in the case.) If this happens, it would be unlikely - though not impossible - to get a final decision from the Ninth Circuit panel until 2012.
On the merits, the most important exchanges related to whether the court could determine the constitutionality of only Prop 8, that is, without reaching the question of whether bars to same-sex marriage in other states would be unconstitutional. Asked that direct question of whether the court could avoid ruling as to other states, Ted Olson said yes, although he added that the decision he wanted would be on broader grounds.
If I had to bet on the merits, my money would be on a decision affirming the district court that applies only to California, and based on reasoning so limited to California that it would not be binding on any other state, even the other states within the Ninth Circuit. In my opinion, that would be the best possible outcome in this case, since it would make it possible that the Supreme Court would decline to review it at all. And wishful thinking to the contrary notwithstanding, this would be a bear of a case - though again, not impossible - to win in the Supreme Court.
In questioning Charles Cooper, who represented the Prop 8 proponents, Judges Reinhardt and Hawkins both alluded to the equal protection standard used by Justice O'Connor in her concurrence in Lawrence: a rational basis with bite standard, that subjects laws to more searching scrutiny when there are indications that they were motivated by bias. If the Ninth Circuit panel ultimately adopts that standard in Perry, it would be the first appellate court to follow O'Connor's lead, but I think many others could follow.
The O'Connor concurrence was, in effect, an explanation in more concrete terms of the Court's rather porous decision in Romer. The panel's decision on the merits - if and when the merits are reached - will be an important interpretation of the scope of Romer, which - doctrinally - will also be the likely focus of the First Circuit's opinion in Gill v. OPM. (Gill has not yet been briefed or argued at the appellate level.)
(Cross-posted at hunter of justice. Photo courtesy Ron Williams.)