Perry v. Schwarzenegger 9th Circuit Panel Assigned; Arguments to Be Broadcast on December 6

Oral argument in Perry v. Schwarzenegger, the case challenging the constitutionality of California Proposition 8, which was enacted in 2008 and then declared unconstitutional earlier this year by U.S. District Judge Vaughn Walker, see 704 F.Supp.2d 921 (N.D.Cal., Aug. 4, 2010), will be held in San Francisco on December 6, beginning at 10 am local (Pacific Coast) time. The three-judge panel announced for the argument consists of Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith. (See addendum added below on Dec. 1 & 2) The argument will be broadcast live, the panel having granted petitions by the major network affiliates in San Francisco and several cable stations and radio stations for both live broadcast and taping for delayed broadcast. This suggests that the argument will be available for anybody who has internet access as well, and there will be multiple opportunities to view it after the live broadcast.

The panel has announced an unusual structure for the oral argument, due to the threshold question whether any of the Appellants have standing to defend the constitutionality of Proposition 8 at the federal appellate level. Proposition 8 enacted an amendment to the California Constitution providing that the only marriages valid or recognized in California would be those involving the marriage of one man to one woman, thus ending a brief window period during which same-sex marriages could be performed in California pursuant to the California Supreme Court's decision in In re Marriage Cases, 183 P.3d 384 (2008).

After an extended trial in which the nominal state government Defendants provided no active defense and the amendment was defended by private lawyers retained by the proponents of the Proposition as Intervenor-Defendants, Judge Walker found that Proposition 8 as enacted violates the 14th Amendment's Due Process and Equal Protection Clauses. In the course of wrangling over whether Judge Walker's Order striking Amendment 8 should be stayed pending appeal, counsel for the Plaintiffs suggested to the court that because the state defendants were not seeking a stay, the proponents of Proposition 8 lacked standing on their own to continue the litigation. Similarly, they argued, a petition by Imperial County to intervene as a Defendant B earlier denied at the trial level but renewed at the appellate level B should be denied as well, since the state was the only government entity with a direct interest in the case, the county performing merely ministerial functions with regard to the state marriage law.

Judge Walker refused to stay his Order, finding that the 9th Circuit's standards for staying an Order pending appeal were not met in this case, and noting that the Plaintiffs' argument that Intervenor-Defendants lacked standing to continue the litigation on their own seemed plausible. His ruling denying the motion for stay can be found at 702 F.Supp.2d 1132 (N.D.Cal. Aug 12, 2010). The Intervenor-Defendants promptly appealed to the motions panel of the 9th Circuit, which unanimously granted a stay pending appeal. The motion panel's ruling can be found at 2010 WL 3212786 (9th Cir.(Cal.) Aug 16, 2010). Without intimating any view on the merits of the standing issue, the motions panel instructed that the parties address the issue of standing as part of the argument on appeal.

In light of the continued dispute about the standing of the appellants as Intervenor-Defendants to carry the defense of Proposition 8 forward in the appellate courts, the merits panel has scheduled a bifurcated argument, the first hour devoted to the standing issue, a second hour devoted to the merits of Proposition 8's constitutionality. The panel also proposed a division of argument time among the various represented parties.

The panel designated to hear the case differs from the three-judge panel that granted a stay of Judge Walker's order.

Judge Hawkins, an appointee of President Bill Clinton who is seen as a moderate in the ideological line-up of the 9th Circuit, was a member of the stay panel.

Judge Reinhardt, an appointee of President Jimmy Carter, is generally characterized as one of the most liberal members of the Circuit, and was part of the 3-judge panel that considered the landmark case of Watkins v. U.S. Army, 847 F.2d 1329 (9th Cir. 1988)(vacated for en banc rehearing and decided on other grounds). In Watkins, the panel majority decided that sexual orientation was either a suspect or quasi-suspect classification, and that the military ban on service by gay people was unconstitutional when subjected to heightened scrutiny. Judge Reinhardt dissented, finding that binding Supreme Court precedent at that time B Bowers v. Hardwick B precluded the majority's approach to the case, while commenting, "Were I free to apply my own view of the meaning of the Constitution and in that light to pass upon the validity of the Army's regulations, I too would conclude that the Army may not refuse to enlist homosexuals." The en banc 9th Circuit vacated the panel's ruling but substituted a ruling that the Army was barred by estoppel from denying re-enlistment to Perry Watkins, because he had been allowed to re-enlist in the past even though his commanders knew he was gay and the denial of re-enlistment that led to the litigation occurred shortly before he would have vested for a military pension. Judge Reinhardt recently ruled that the federal Defense of Marriage Act was unconstitutional as applied to Brad Levenson, a gay male employee of the 9th Circuit who had married his same-sex partner in California and then was denied spousal benefits by Court administrators. See 560 F.3d 1145 (C.A.9 (Jud.C.) 2009). If he finds DOMA to be unconstitutional, it seems likely he would doubt the constitutionality of Proposition 8. Based on his past judicial record, he appears the most likely member of the panel to vote to uphold Judge Walker's ruling.

The third member of the panel, Judge Smith, was appointed by President George W. Bush and is generally characterized as a judicial conservative who is unlikely to rule for same-sex marriage.

Thus, it seems likely that if the panel finds that one or both of the Appellants have standing and proceeds to consider the merits, the vote will probably be 2-1, the outcome likely turning on the views of Judge Hawkins, who has generally been supportive of gay rights and related claims during his time on the 9th Circuit. For example, he dissented from a panel decision in Thomas v. Anchorage Equal Rights Commission, 165 F.3d 692 (1999), in which the panel held that a religious landlord who refused to rent to unmarried couples was privileged under the 1st Amendment to violate the Anchorage Human Rights Law. (The circuit ultimately vacated this ruling en banc on grounds of lack of ripeness of the landlord's constitutional challenge.) In American Family Association v. City and County of San Francisco, 277 F.3d 1114 (2002), he wrote for a panel majority holding that the city's Board of Supervisors did not violate the 1st Amendment rights of right-wing groups, including the anti-gay American Family Association, by passing a resolution stating disapproval of an anti-gay advertising campaign. In U.S. v. Miguel, 87 Fed.Appx. 67 (2004), he was part of a panel that upheld a murder conviction where there was a special jury finding that the victim's actual or perceived sexual orientation was a motivation for the crime. In Bodett v. Coxcom, Inc., 366 F.3d 736 (2004), he wrote for the panel affirming a ruling that an employer did not violate the religious freedom rights of a supervisory employee who was discharged for coercing and harassing an openly-gay subordinate. In two gay asylum cases, Yeoh v. Gonzales, 2006 WL 2846849 (2006), and Labas v. Gonzales, 231 Fed.Appx. 587 (2007), he was part of panels that remanded claims back to the Board of Immigration Appeals for reconsideration of its denial of asylum; in another panel ruling, Rangel-Fletes v. Holder, 339 Fed.Appx
. 826 (2009), the panel agreed with the BIA that the gay petitioner from Mexico failed to show past persecution or clear probability of future persecution. (Gay asylum claims from Mexico are becoming much more difficult to win in light of the advances made by the gay rights movement there in the past few years.) In Cooper v. Federal Aviation Administration, 622 F.3d 1016 (2010), he was part of a panel that upheld a damages award under the Privacy Act for a gay, HIV+ pilot whose licensure status was harmed by an unauthorized breach of confidentiality concerning his Social Security records, and in Smith v. J.S. Woodford, 2010 WL 3937326 (2010), he was part of a panel that revived a state prisoners federal civil rights lawsuit alleging sexual orientation discrimination by prison officials. In 1998, he joined a dissent from the circuit's refusal to grant en banc review in Holmes v. California Army National Guard, 155 F.3d 1039, a case challenging the military "don't ask, don't tell" policy, which had been upheld by a three-judge panel. Hawkins joined Judge Pregerson's argument that the policy raised serious 1st Amendment concerns by attaching adverse consequences to speech. Based on this record, it would appear that the Plaintiffs-Appellees stand a fair chance with Judge Hawkins.

If the court decides that the Appellants lack standing, there remains the question whether their lack of standing to appeal undermines the validity of Judge Walker's decision and Order, since the state government Defendants did not actively participate at the trial. Intervenor-Defendants have argued that if nobody with standing was defending Proposition 8, there was no genuine case or controversy pending before Judge Walker, so he should have granted a default judgement against the state rather than issuing a ruling on the merits. Perhaps the 9th Circuit panel would address this question if it rules against standing; if it were to be remanded to the District Court for consideration of an appropriate Order in that case, it would go to a different judge, because Judge Walker announced that he will retire from the bench at the end of December.

On an interesting side note, the elections of Attorney General Jerry Brown as Governor of California and of San Francisco County District Attorney Kamala Devi Harris as Attorney General guarantee that the state's position of refusing to defend Proposition 8's constitutionality will continue. The Republican candidates for both positions had announced that if elected they would seek to defend Proposition 8 in the appeal, most likely in an amicus capacity because the time for the state to appeal Judge Walker's decision expired prior to the election.

Addendum:  Evidently the attorneys for Proponents of Prop 8 got right to work researching the 9th Circuit panel members, and they filed a motion asking Judge Reinhardt to recuse himself on the grounds that his wife was until recently head of the Southern California ACLU and an outspoken opponent of Prop 8.  ACLU has an amicus brief in the case….   On December 2, Judge Reinhardt denied the motion, in a brief order.  He observed that he has in the past recused himself when it was "warranted by the circumstances."  "Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that 'a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned."  He asserted that he would be able to rule impartially on this appeal and would do so.

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