By Mike Dorsi

Today a three-judge panel of the Ninth Circuit Court of Appeals will hear oral arguments in Perry v. Schwarzenegger (1 PM Eastern/10 AM Pacific, C-SPAN, ), the appeal of Judge Vaughn R. Walker’s ruling that Proposition 8, by banning same-sex marriage in California, violated the United States Constitution.  The appellants seeking to reverse Judge Walker’s ruling include the sponsors of Proposition 8, individuals, and local officials who may be tasked with issuing marriages to same-sex couples.  California Governor Arnold Schwarzenegger and Attorney General (now Governor-elect) Jerry Brown declined to appeal on behalf of the state.  Upon the filing of the appeal, a three-judge panel of the Ninth Circuit issued a stay, and advised the parties to brief the court on the issue of whether the appellants have Article III standing to bring the appeal (citing Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997)). Accordingly, the current panel indicated that oral argument time would be split, one hour on standing and one hour on the merits.

A new panel, which includes only one of the three judges who issued the stay (more on this later) will hear oral arguments today.  The panel is comprised of Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith.  Judge Reinhardt, appointed by President Carter, is conventionally thought of as one of the most liberal judges on the federal bench, and Judge Smith, appointed by President George W. Bush, is known as conservative.  Some media accounts are discussing Judge Hawkins, a Clinton appointee, as moderate.  It is worth noting that Judge Hawkins is not averse to bold rulings that may be seen as liberal; last year Judge Hawkins wrote an opinion ruling against the State Secrets Doctrine, writing that it had no logical limits.  In the case, Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009), rev’d en banc, 586 F.3d 1108 (9th Cir. 2010).

Much has already been written so I’d like to highlight to things to watch for if you happen to tune in:

1. Role Reversal on Standing
In order to prevail, the appellants need to win both on standing and on the merits.  Conventionally, judges viewed as conservative tend to take a more restrictive view of standing.  Here exists a potential reversal of roles: it is possible that Judge Smith will rule that the plaintiffs lack standing, while Judge Reinhardt may rule that they do possess standing to bring the challenge.  However, there is reason to see this case differently from either Judge Smith or Judge Reinhardt’s perspective.
One reason for a conservative judge to resist denying standing to these appellants is the inapplicability of an underlying rationale for limited standing.  Among various arguments for restricted standing is the view that generalized claims should be resolved through the political process rather than through the courts.  See, e.g., Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881 (1983).  For example, courts often preclude individuals from bringing claims that would compel the government to enforce environmental laws, insisting that the recourse for the public is to elect a President whose administration will enforce the law as the plaintiffs desire.  See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  However, in this instance, the appellants already acted through the political process by twice passing statewide initiatives in California restricting marriage to opposite-sex couples, while the appellants locate to origin of their grievance with the federal court decision by Judge Walker.
Shifting to Judge Reinhardt, he may be inclined to rule in favor of standing for the appellants, even if he would deny their underlying claim on the merits.  Judge Reinhardt has often accepted a broad view of standing, including for the sponsors of a state ballot intiative at in Airzonans for Official English.  See Yniguez v. Arizonans for Official English, 69 F.3d 920, 926 (9th Cir. 1995), rev’d sub nom Arizonans For Official English v. Arizona, 520 U.S. 43 (1997).  Although the Supreme Court reversed in Arizonans on other grounds, Justice Ginsburg’s opinion stated that the Court has never “identified initiative proponents as Article III qualified defenders of the measures they advocated.”  Arizonans, 520 U.S. at 67.  It is uncertain whether Judge Reinhardt will follow his prior decision, explicitly state that his decision has been overruled, or distinguish the situation in Arizonans from the situation in Perry.
Judge Hawkins, unlike Judges Smith and Reinhardt, was a member of the panel that issued the stay and indicated that parties should brief the standing issue, citing Arizonans.  That said, I wouldn’t read too much into this, and anyway we’ll know the outcome soon enough.

2. Emphasis on the Record
Discussing the merits, expect the court to press the appellants on their citations to non-record sources of fact.  At the trial court, the attorneys representing the plaintiffs, led by former Solicitor General Ted Olson, presented a large volume of evidence.  The sponsors of Prop 8, then as defendant-intervenors (now appellants), presented far less evidence, and made numerous citations for factual material from outside sources.  In a speech on the Harvard Law School campus two years ago, David Boies, then as now co-counsel to Mr. Olson, indicated that it was important that plaintiffs establish a strong record.  It appears that the development of the record was central to the Olson-Boies strategy, while the appellants now appear to be looking to bring in new material at the appellate level.  The appellee brief mentions the lack of record citations and abundance of non-record citations.  If the court seems to follow that theme, it could be an indication that the court is inclined to rule in favor of same-sex marriage on the merits.

Briefs by parties and many amici available at

Michael Dorsi is a 3L at Harvard Law School and Editor-in-Chief of the Harvard Environmental Law Review, a job that regularly requires him to review articles discussing standing doctrine.  Michael lived in the San Francisco Bay Area when In re Marriage Cases (Cal. 2008) was decided, and ever since has obsessively followed the litigation and elections over marriage equality in California.  He would like to than Professor William Rubenstein for his reading group on same-sex marriage in California.  Although Michael is not a member of CRCL, he did attend CRCL’s subciter training as a 1L.