Following last week's decision finding that California's Prop 8 was unconstitutional, much of the talk centered around what the Supreme Court would do when presented with the question whether a ban on same-sex marriage was constitutional. The thinking is that the Ninth Circuit will hear the case and, especially if the Ninth Circuit affirms the district court's finding of unconstitutionality, the Supreme Court would enter the fray.
However, I'm going to go out on a limb here and predict that, even though the Supreme Court will probably enter this debate at some point in the future, this particular case will probably be moot by the time the Supreme Court would decide.
Prop 8 opponents have organized a campaign to get marriage back on the ballot in California. After much debate in the LGBT community, the decision was made to push for a marriage ballot resolution in 2012 (rather than 2010). So, in two years, Californians will once again vote on whether same-sex couples can marry.
Why the confidence that a marriage resolution in 2012 will result in same-sex marriage when the marriage resolution in 2008 rejected it? Yesterday's news from CNN illustrates it. For the first time in a serious national poll, gay marriage polled majority support. The position in favor of equality has momentum at its back.
Not only is there momentum, but there's also demographics. Gay marriage has much more support by younger voters than older voters. Four years is enough to make a huge difference in this regard, as older voters die off and younger people become voters (or, if voting age already, become more consistent voters).
Thus, in November 2012, I think it's a pretty good bet that the voters of California will vote for same-sex marriage. They voted down same-sex marriage in 2008 by only 4 points. In 2012, they'll probably vote in favor of same-sex marriage by a small, but definite margin. Prop 8 will be history. Assuming a normal appeals process, involving a panel of the Ninth Circuit, an en banc review by the Ninth Circuit, then a certiorari petition to the Supreme Court, followed by briefing and argument, I just can't imagine the Supreme Court deciding before November 2012.
And by that time, the case will be moot, as justice will already have been attained through the ballot box.
Cross-posted at the Feminist Law Professors.
On the other hand, the Ninth Circuit will probably have ruled, and there won't be any reason to vacate the Ninth Circuit's decision as moot...
Posted by: whiskey | August 12, 2010 at 05:02 PM
Prop. 8 would have prevailed by 12 points instead of 4 if the ballot language had been clear (Jerry Brown made it confusing on purpose. His evil ploy nearly defeated the measure).
Do you suppose the next proposition will be honestly labelled?
Posted by: Curious | August 12, 2010 at 06:07 PM
whiskey,
I might be mistaken, but I believe standard SCOTUS practice is indeed to vacate judgments which have been mooted at some point during the SCOTUS review process. I'll see if I can find a case in which this was done.
Posted by: Anon21 | August 12, 2010 at 06:34 PM
Ok, here is an example which at least appears to be on point. In Weinstein v. Bradford, 423 U.S. 147, the respondent prisoner had obtained some sort of relief having to do with parole procedures from the Fourth Circuit (519 F.2d 728), which was decided Nov. 22, 1974. The respondent was then apparently paroled on Dec. 18, 1974, and released from all supervision on Mar. 25, 1975. SCOTUS granted cert. on June 2, 1975, the petitioner apparently not having brought it to the Court's attention that the respondent was no longer subject to the parole procedures. When the petitioner did raise the issue during the merits stage, the Court (per curiam) vacated the Fourth Circuit's judgment and remanded to the district court with instructions to dismiss.
So I think that a favorable 9th Circuit decision would indeed be vacated if the matter became moot while on appeal to the Supreme Court. I guess another question would be how this would work if the repeal were to go through following the 9th Circuit's decision, but before SCOTUS granted cert--whether SCOTUS would GVR on mootness grounds, or whether it would simply deny cert, leaving the judgment below intact.
Posted by: Anon21 | August 12, 2010 at 06:44 PM
The post assumes that the appeal itself will be justiciable unless mooted, but that is open to question. The plaintiffs in Perry unquestionably had standing to sue given their inability to marry as a consequence of Proposition 8, but only the state has standing to appeal a judgment invalidating a state law even if others have intervened in the litigation in defense of the challenged law. See Diamond v. Charles, 476 U.S. 54 (1986). Thus far, as I understand it, only the defendant-intervenors have appealed. The state officials who are technical defendants appear to support to district court's decision, although one or more may eventually file a notice of appeal in order to preserve the possibility of appellate review. Still, that is far from certain, and it is equally uncertain whether a protective notice of appeal filed by a party with no intention of actually prosecuting the appeal could preserve appellate standing if otherwise lacking. To be sure, there is reason to adopt a different rule of appellate standing for laws enacted by voter initiative on the theory that the voters, or at least the sponsors of the initiative, have their own interest in preserving the law separate that is distinct from the interests of elected officials, but the Court expressed some skepticism about such a theory in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). Still, Attorney General Brown's decision not to defend Proposition 8 seems a clear example of the conflict of interest between elected officials and the sponsors of a voter initiative which is, after all, part of the argument for the initiative process. For this reason, I suspect that the intervenors should be granted standing to appeal, though the matter is not free from doubt.
Larry Rosenthal
Chapman University School of Law
Posted by: Larry Rosenthal | August 12, 2010 at 09:18 PM
Curious - I'd love to see your sources for what you're putting out there. It does appear that gay marriage is gaining majority support in California. In 2012, even more so I'd bet. http://latimesblogs.latimes.com/lanow/2010/03/50-of-californians-now-support-gay-marriage-poll-finds.html
Larry - I agree that standing is not guaranteed on appeal. But, I also know that these kind of things can be manipulated by the courts, and the right panel on the Ninth Circuit will say there's standing if they want to. Also, could the decision on appeal somehow be stayed until the November election results (and the subsequent turn-over in office)? Has Meg Whitman said what she'd do if she were in office on this issue?
Posted by: David S. Cohen | August 12, 2010 at 09:49 PM
As to young people being in support of gay marriage: Don't count on it. Once they leave the cocoon of their schools, where they have been pretty much been presented with the pro-gay marriage arguments, they will go out into the world and get jobs; they will start getting married, having kids and mortgages and the whole thing. Then, every day, on the way into work, they will be listening to right wing talk radio, which will give them the other side. Net result: the ultra liberal college kid becomes a solid conservative within four years of graduating. My nephew was a Howard Zinn believing, Move-on.org Democrat in 2008. Even a scant two years later, I hear rumblings of conservative thought coming out of him. He admits that he is changing.
Posted by: 'Tom | August 12, 2010 at 10:02 PM
I misquoted the key number but the point stands: the gap would have been 8% if Jerry Brown hadn't tried to sabotage the initiative, according to...
http://electionlawblog.org/archives/016597.html
Of course, Brown is now "throwing the game" in Federal court... apparently he plans not to appeal the District Court's ruling against Prop. 8 even though he has a sworn duty to defend the law.
Posted by: Curious | August 12, 2010 at 10:18 PM
David:
A notice of appeal must be filed within 30 days of the final judgment. An appeal filed by officials who take office after next November's elections comes too late. The requirement of a timely appeal, moreover, is considered jurisdictional.
Larry
Posted by: Larry Rosenthal | August 13, 2010 at 12:32 AM
Curious - thanks for that. That means there's work to be done, but I think natural demographic shifts as well as more accepting views generally will do it, and by 2012 even. I think the polls indicate the shifts are happening already.
Larry - is there any way to get that time period extended? Any thoughts on whether the Ninth Circuit would take Judge Walker's discussion about standing on appeal for intervenors seriously?
Posted by: David S. Cohen | August 13, 2010 at 10:59 AM
In general, the time for filing a notice of appeal can be extended for only an additional 30 days. See Fed. R. App. P. 4(a)(5). Thus, if an appeal is going to be taken by any of the state officials, the current officeholders will have to be the ones to file it. Will the Ninth Circuit take this argument seriously? Of course it will. The attack on the intervenors' standing to appeal has solid support in Supreme Court precedent, and the lawyers for the plaintiffs-appellees are highly competent. As I indicated above, I think that the Ninth Circuit should adopt a different rule of standing for intervenors defending a law adopted by voter initiative such as Proposition 8, but that argument is something of an uphill climb.
Posted by: Larry Rosenthal | August 13, 2010 at 11:16 AM
Thanks Larry. On a related but different note, will the panel of the Ninth Circuit that gets the stay order appeal be the same panel that hears the case on the merits (or on the procedural standing issue or both)? I don't recall the rules about this type of internal procedural question from my days clerking there.
Posted by: David S. Cohen | August 13, 2010 at 11:36 AM
@Curious: can you point to specific California law that requires Brown to defend Prop 8? From what I've seen, he is required to "enforce" the law; it seems reasonable to me to conclude that "defend in court" is outside of the scope of "enforce." (IANAL, though, in CA or otherwise.)
Posted by: Crowboy | August 13, 2010 at 12:04 PM
David: My understanding is that the panel that hears the stay will be a "motions" panel and is unlikely to be the same panel that might ultimately decide the merits.
Posted by: David Groshoff | August 13, 2010 at 07:37 PM
The article that served as the origin for this speculation was a 2009 article that stated that LGBT leaders had decided to put an initiative on the ballot in 1012 rather than 2010. This was before the bringing of Perry, the case that has led to Prop 8 being overturned. Absent a contrary ruling from the 9th Circuit, there is no urgency to put on the ballot a costly and divisive initiative to win rights that (as of now) have already been restored.
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