This post is the third of several providing background information about the LDS church’s involvement in the Prop 8 campaign in California. The series will provide pertinent court case and appellate background information to readers interested in March’s Supreme Court hearing. First post in series is here. Second post is here. More detailed timelines showing LDS involvement in same-sex marriage politics may be found here.
When Federal District Judge Vaughn Walker ruled that the clause in California’s constitution limiting marriage to one man and one woman was in conflict with the federal Constitution, the plaintiffs were satisfied (or, more accurately, thrilled) with the decision. The defendants (California’s state government) were also satisfied, or at least willing to accept the decision – after all, neither of the state’s two governors affected by the litigation chose to defend it.
But the people who got Proposition 8 onto the state ballot in 2008, Andy Pugno and the Protect Marriage coalition, were not happy. They felt the federal judge was overstepping the “will of the people” – the voters who approved the constitutional amendment by a narrow margin. The problem was these people were not named defendants in the lawsuit. They stepped into the argument – they intervened – because if they hadn’t stepped into the fray, the lawsuit would have been moot – the plaintiffs would have said they were harmed, the state would agree, the trial could have been skipped and a summary judgment issued.
The problem was (and continues to be) whether or not these defendant-intervenors actually have a stake in the game. Every time they file an appeal, the higher court must first decide if they even have the right to bring the lawsuit in the first place. You see, while anyone can bring a lawsuit to a court, if they can’t prove that they’ve been harmed or that there’s a reason for the suit, the judge can throw them out on their ear. This issue of standing – of the right to stand in front of a judge and plead your case one way or another – helps to keep frivolous lawsuits out of the court system. Since the Protect Marriage coalition was not a named defendant in the lawsuit, it was not clear that they had a right to appeal the decision (appeals must be brought by parties in the case).
When the defendant-intervenors filed their first appeal with the 9th Circuit, there were some significant questions about whether they actually could bring the appeal to the court at all. The U.S. Supreme Court had already ruled unanimously in a similar situation in Arizona that the folks who put a question onto the ballot did not have the authority to litigate or defend it in the court.
But the Supreme Court justices had to apply Arizona law to that case, and California’s laws are different. In California, voters have stronger rights when it comes to creating initiative constitutional amendments, and because of their rights under the state constitution, it was not clear they were in the same situation as the folks in Arizona were. The appellate court had a dilemma, though, because although California had explicit rights for voters and ballot initiatives, there was no case law about the issue to which the appellate court could refer. So rather than look at California’s law and apply it themselves, they asked some California law experts – the state’s own supreme court – to weigh in on the matter.
After the state courts ruled unanimously that the defendant-intervenors could legally bring the appeal under California law, the appeals court had to decide how much weight they would give to the state justices’ advisory opinion.
And why does this even matter?
Because if the appeal cannot be made, Judge Walker’s original decision stands and, by default, same-sex marriage is once again legal in California. The 9th Circuit decided to take the advice of the California supreme court and allow the folks who wrote the proposition to defend the case. So they had their turn in the Court of Appeals and lost again, this time in a 2-1 decision. A number of organizations filed “friends of the court” briefs in support of each side in the appeal. The LDS church joined with several other religious organizations in filing an amicus brief supporting traditional marriage and explaining how their opposition to same-sex marriage is not driven by animus.
With the appeal to the Supreme Court, Pugno’s coalition is in the same situation they were at the end of the first trial: They’ve filed an appeal, but the judges who will hear the case, this time the U.S. Supreme Court, are asking them to discuss why they have a right to bring the appeal forward to begin with. This question of standing provides a kind of escape valve which would allow the Supreme Court to side-step a gay marriage decision completely.
Chances are, though, that the case will actually be decided on its merits. The Supreme Court justices will take a look at the briefs, ask questions during the oral arguments and have the opportunity to review the evidence set forth in the original trial. Attorneys for either side cannot introduce new evidence during the appeals process – they have to rely on the cases built back in 2010. There is no question that the original plaintiffs represented by Theodore Olson and David Boies presented a stronger case – they had firmer evidence, knowledgeable and articulate experts and thousands of pages of documentation for Judge Walker to review. It’s no coincidence that the hundreds of Findings of Fact from that case represent many of the points and arguments brought by the plaintiffs. But it remains to be seen whether they’ve created a case and supported it with legal arguments strong enough to sway a majority of the Supreme Court justices.