Will the 10th Circuit Dismiss Utah's Appeal of Marriage Ruling?

As most readers will recall, last December a federal district court struck down Utah's ban on same sex marriages.  The posture of the case was that the plaintiffs sued the Governor, Attorney General and the Salt Lake County Clerk - who was responsible for issuing marriage licenses as the defendants.  On appeal, the County Clerk did not appeal the district court ruling.  Now, based on questions raised during oral argument before the 10th Circuit, anti-gay forces in Utah are worried that the 10th Circuit may dismiss the appeal for lack of standing - i.e., the absence of the County Clerk as an appellant.  Obviously, the irony would be ever so sweet if the appeal was dismissed and the lower court ruling was left standing.  Here are highlights from the Salt Lake Tribune:

There’s a small concern lurking beneath the surface in Utah’s same-sex marriage case, a quiet question that some experts say could derail the state’s push to permanently ban gay and lesbian unions.

Although few believe it poses a serious threat to the case’s trajectory — likely headed to the U.S. Supreme Court by summer — the question persists:   Could Kitchen v. Herbert be thrown out on a technicality? 

On Tuesday, Utah’s lead counsel Gene C. Schaerr drew attention to a question posed to both sides by a three-judge panel at the 10th Circuit Court of Appeals last week regarding whether the lawsuit targeted the appropriate state and county officials. 

In the Utah lawsuit, the three couple plaintiffs represented by Peggy A. Tomsic and James E. Magleby named the governor, the attorney general and the Salt Lake County clerk in the case.

They allege these three officials are responsible for same-sex couples being denied marriage licenses and for out-of-state marriages remaining unrecognized in Utah.

 Why would Utah’s lead attorney be volunteering to the court that the governor and attorney general are, in fact, the proper people to sue?   If the court finds that they’re not, the appellate judges may decline to rule in the case, leaving Judge Robert J. Shelby’s ruling to stand as law in Utah. 

During Utah’s arguments last week, Judge Jerome A. Holmes — widely considered to be the "vote to get" in the case — asked Tomsic to explain why the defendants her plaintiffs had singled out were appropriate. 

Further, he asked whether the state continued to have the right to appeal the case, given that Salt Lake County Clerk Sherrie Swensen declined to appeal Judge Shelby’s Dec. 20 decision to overturn Utah’s same-sex marriage ban.

"You sued the clerk of court," Holmes said, referring to Swensen. "But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case. "

 

It is not known when this decision may be issued, though experts estimate it could take anywhere from one to three months.

Should the court rule on the merits of the case and side with — or oppose —the lower court’s decision, its ruling would effectually extend to all states in the 10th Circuit, including Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

How the Court Could Rule on Same-Sex Marriage

The chart here via the New York Times lays out the options before the Supreme Court as it hears oral arguments this week.  It goes without saying that the options I am hoping for are:

1.  All laws prohibiting same-sex ma.rriage around the nation fall; and

2. Married same-sex couples in the nine states that allow such unions, along with the District of Columbia, become subject to more than 1,000 federal laws and programs and start to receive federal benefits.

Are Proposition 8 Proponents Trying to Avoid a Direct SCOTUS Ruling?

The last brief has been filed in the case of Hollingsworth v. Perry (12-144)by the proponents of Proposition 8 and bizarrely they seem to be asking the U.S. Supreme Court ("SCOTUS") to remand the case back down to California Supreme Court for further consideration of whether the proponents have "standing" to litigate the case before the Court.  Previously, the Court independently engaged Harvard Law professor Vicki C. Jackson to brief the issue of standing in both the Proposition 8 appeal and in the DOMA appeal.  Professor Jackson found a lack of standing in both cases.  This last minute filing suggests one of two things in my view.  Either (i) the Proposition 8 proponents fear that if the Court rules that they lack standing, the 9th Circuit Court of Appeals will stand and Proposition 8 is dead, or (ii) they fear an broader ruling in favor of gay marriage.  A remand to the California Supreme Court would delay either eventuality.  The Proposition 8 proponents' goal is to keep LGBT citizens inferior under the law as long as possible even if they now believe that they may lose the larger battle.  A post on SCOTUS Blog looks at the development.  Here are excerpts:

Lawyers for the sponsors of California’s Proposition 8 ban on same-sex marriage suggested in a new Supreme Court filing on Tuesday that their case might be sent back to the state supreme court to further analyze their right to defend that measure’s constitutionality. The suggestion came in the reply brief, the final document in the case of Hollingsworth v. Perry (12-144) before the oral argument next Tuesday.

The Court, in granting review of the case, told lawyers to address whether a ballot measure’s backers have “standing” under the Constitution’s Article III to be pursuing an appeal of a lower court decision nullifying their measure. The challengers to Proposition 8 have argued that the sponsors cannot meet that constitutional test because they cannot show that they have suffered any legal injury from that decision.

The sponsors, citing the California Supreme Court ruling finding that they are allowed to stand in for the state in defending a ballot measure that state officials won’t defend, argued that their role is actually to represent both the people of the state and the state itself in this court battle.

Under California law, the brief went on, the backers “do have a unique, personal stake in the validity of Proposition 8 that is ‘directly affected’ by this litigation.” At that point in the brief, the proponents inserted a footnote commenting that neither the Ninth Circuit Court nor the California Supreme Court, in finding “standing,” had dealt with the issue of personal injury.

Thus, it said, “it may be appropriate” to send the case back to the state court “if this Court concludes that petitioners [the sponsors]. despite their establishing authority to represent the State’s interest, must also demonstrate personal injury to satisfy Article III.”

The reply brief also defends the constitutionality of Proposition 8 on the merits, relying again heavily on the history of marriage as between a man and a woman, and on the argument that the fundamental purpose of marriage is to foster childbirth.

Acknowledging that the political argument for same-sex marriage “has resonated with growing numbers of Americans in recent years,” the brief said that this trend runs counter to the view in most states, but that if marriage is to be redefined, it should be “for the People to decide.”

Note that the last gasp defense of Proposition 8 comes down to majority mob rule where in theory the rights of every minority is at risk.  One can only hope for the day when Christians become a majority in America at which time it will be nice conceptually to threaten to apply their mob majority rule standard against them themselves.  These people are horrible.  Meanwhile, of course, the public support for gay marriage is accelerating. 

SpecialDOMA Amicus Brief: Supreme Court Lacks Jurisdiction; GOP House Members Lack Standing

In previous posts this blog has looked at the issue of "standing" - i.e., who is a proper party in interest to take an appeal of lower court rulings - as well as the Supreme Court's engagement of Harvard Law professor Vicki C. Jackson to brief the issue of standing in both the Proposition 8 appeal and in the DOMA appeal brought by the GOP members of the House of Representatives.  The issue of standing is important in both cases since, if the appellants lack standing, the U. S. Supreme Court could side step both cases and leave the lower court rulings striking down Prop 8 and DOMA in place.  The result of this would be that (i) Prop 8 is dead and gay marriage is legal once again in California and arguable in the other states in the 9th Circuit, and in the DOMA appeal centering on Edie Windsor (pictured at left) brought by the House GOP, the result would be that DOMA is unconstitutional in the 1st and 2nd Circuits.   

Today, professor Jackson filed her amicus brief in the DOMA appeal and, not surprisingly, found (a) that the Supreme Court lacked jurisdiction given the posture of the case and (b) the the House GOP lacked standing to defend a rulint in which the executive branch has acquiesced.  In short, if the justices on the Supreme Court desire to duck making a ruling, Prof. Jackson has given them a road map of how to do so.  Should the Court take this avenue, the good news is that Barack Obama will likely have the opportunity to appoint new liberal justices before the next gay marriage and/or DOMA appeal to the U. S. Supreme Court.  The other irony would be that the GOP House members just squander $3 million in legal fees for absolutely nothing.  The bad news is that many of us will definitively remain second class citizens for the near future.   Here are details from SCOTUS Blog:

The Supreme Court does not have the power to rule on the case the Justices have agreed to review on the constitutionality of the federal Defense of Marriage Act of 1996, a Harvard law professor argued in a brief filed Thursday evening. The professor, Vicki C. Jackson, also argued against letting the Republican members of the House of Representatives’ leadership defend DOMA’s validity, saying they do not speak for Congress, or even for the House.

If the Court accepts this advice, it probably would miss its chance to rule during the current Term on DOMA’s Section 3, which defines marriage for all federal purposes as the union of one man and one woman. It has been challenged by same-sex couples who are legally married, as they seek the federal benefits at issue. There is not time, in the remaining months of the Term (unless the Court would really rush things), for review of another DOMA case, even though others are pending.

The Court on December 7 agreed to review the constitutionality of Section 3 in the case of United States v. Windsor (docket 12-307). At the same time, however, it added questions about its authority to do so and then invited Professor Jackson to argue two points: One, whether the Obama administration can appeal a case that it won in a lower court (it believes DOMA is unconstitutional, and the lower court ruled that way). And, two, whether the House’s three GOP leaders could satisfy the Constitution’s Article III requirement that they have a legal right to be DOMA’s defenders in court.

The question about the administration’s stance is one of judicial power: if the Court lacks that basic power to decide, it cannot resolve the constitutional question in response to the government’s appeal. The question about the House GOP is one of “standing,” in a constitutional sense, to appeal: if those legislators cannot show they had real legal interests at stake, they could not be in court.

While the Court has also agreed to review the constitutionality of California’s “Proposition 8,” a statewide ban on same-sex marriage, the Court also raised a question of whether it could rule on that case. It posed the question of whether the sponsors of the “Proposition 8″ ballot measure had “standing” to appeal, under Article III. (That will be debated between those proponents and the two same-sex couples who successfully challenged that measure in lower courts. That was not within the assignment the Court gave to Professor Jackson, which was limited to the DOMA case.)

If it turns out that the California proponents are found to lack the right to pursue their appeal, that case, too, could be ended without a ruling by the Justices on the validity of that state’s marriage ban.

If the GOP House members are found to lack standing, they ought to be required to reimburse the wasted $3 million.  A plain reading of Article III of the Constitution  clearly suggests the the GOP House members never had the right to appeal the 1st and 2nd Circuit DOMA rulings.