By Mike Dorsi

Yesterday Judges Reinhardt, Hawkins, and Smith of the Ninth Circuit heard oral arguments in Perry v. Schwarzenegger (you can view a video of the oral argument at  As I noted in my prior post, there are several issues aside from the constitutional argument for same-sex marriage on the merits.  Yesterday I highlighted two issues to watch for: role reversal on standing and the importance of the record.  Reviewing these two items show a mixed result, but probably one more likely than not to affirm the district court decision (for those not following closely, that means same-sex marriage probably wins).

1. Strong Possibility that Appeal Will Be Dismissed for Lack of Standing

As I wrote yesterday, the appellants have to establish standing to bring the case, and this is called into question by the Supreme Court’s decision in Arizonans For Official English v. Arizona, 520 U.S. 43 (1997), which said, arguably in dicta, that sponsors of a state ballot initiative lack standing to appeal a decision holding that a state ballot initiative is unconstitutional.  Two of the three judges on yesterday’s panel, Judges Reinhardt and Hawkins, cast votes that granted standing in Arizonans, and yesterday Judge Hawkins joked about being wrong in that case (In a 9-0 decision written by Justice Ginsburg, the Supreme Court reversed the Ninth Circuit decision in Arizonans).  From their comments, it appears both Judges Reinhardt and Hawkins are willing to back down from their position in Arizonans.

Judge Smith expressed concern, shared by Judge Reinhardt, regarding the unwillingness of the Governor and Attorney General to pursue an appeal.  Judge Smith characterized the decision to not appeal (and not defend Proposition 8 at the district court) as and end-run around the rules of California law that prohibit the Governor and Attorney General from nullifying state ballot initiatives.  Judges Smith and Reinhardt both suggested there might be merit in consulting the California Supreme Court on the question of whether the appellant sponsors of a state ballot initiative may bring an appeal in the place of state officials.

David Boies, arguing for the plaintiffs, indicated that even if the state were to grant standing in state court to an alternate advocate for Proposition 8, the advocate will not meet Article III standing requirements because that advocate could show a particularized injury.  It seems difficult if not impossible to articulate a particularized injury from someone else’s marriage.

There is an intuitive appeal to the argument that state officials should enforce the law, however, Article III standing and related doctrines clearly establish that there are instances where courts are not to interfere.  Historically, these instances tend to limit the ability of private plaintiffs to enforce civil rights or environmental claims.  Article III standing has been the basis for denying claims to require enforcement of the Endangered Species Act (Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)), requests to revoke tax-exempt status for segregated private schools (Akins), and requests to enforce forestry regulations (Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009)), among other issues.  From this it seems to follow, at least at an intuitive level, that if no court can do anything about an endangered animal in someone else’s lake, the tax status of someone else’s school, or trees in someone else’s forest, then there may be no court that can do anything about someone else’s marriage.

This is consistent with one of the underlying rationales of Article III standing.  The separation of powers rationale for Article III standing suggests that if people do not like how elected officials are enforcing the laws, they should seek change through the political process.  Californians have declined to take this step; Governor-elect Jerry Brown and Attorney General-elect Kamala Harris both promised, during their campaigns, not to appeal the district court decision in Perry.  Their opponents, Republicans Meg Whitman and Steve Cooley, both promised to bring appeals, and subsequently lost their elections.

2. Judges Seem Interested in “Legislative Facts” Rather than the Record

Arguing for the plaintiffs, Ted Olson made a point that the record from the district court does not support the claimed rational basis analysis provided by the appellants.  This could have been a very valuable point for the plaintiffs, as the appellants did not make much of an effort to develop the record at the trial level.  However, Judge Hawkins in particular seems unwilling to defer entirely to the record, suggesting that the court should consider “legislative facts” that might provide a rational basis or compelling state interest for Proposition 8.
It is unsurprising that an appellate court would not want to be bound by very general findings of fact by a district court, but it is nonetheless disappointing for the plaintiffs.  Additionally, the context of a trial court presents the opportunity for cross-examination and detailed interrogation of the arguments against same-sex marriages.  Based on Ted Olson’s presentation of the plaintiffs’ case on the merits, Olson felt that the trial court process favors his side because, while there may be arguments against same-sex marriage that many people find intuitive, those arguments collapse when interrogated.  Although the record may still provide some benefit for the plaintiffs, it is unlikely to be as substantial as plaintiffs’ counsel may have hoped.

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.