FILED
FOR PUBLICATION JAN 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B. No. 10-16696
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-VRW
Northern District of California,
Plaintiffs - Appellees, San Francisco
CITY AND COUNTY OF SAN
FRANCISCO, CONCURRENCE TO THE
CERTIFICATION ORDER
Plaintiff - Intervenor - AND PER CURIAM OPINION
Appellee,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of California;
EDMUND G. BROWN, Jr., in his official
capacity as Attorney General of California;
MARK B. HORTON, in his official
capacity as Director of the California
Department of Public Health & State
Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
Planning for the California Department of
Public Health; PATRICK O’CONNELL,
in his official capacity as Clerk-Recorder
for the County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk for the
County of Los Angeles,
Defendants,
and
DENNIS HOLLINGSWORTH; GAIL J.
KNIGHT; MARTIN F. GUTIERREZ;
HAK-SHING WILLIAM TAM; MARK
A. JANSSON;
PROTECTMARRIAGE.COM - YES ON
8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8,
Defendants - Intervenors -
Appellants.
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KRISTIN M. PERRY; SANDRA B. No. 10-16751
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO, D.C. No. 3:09-cv-02292-VRW
Plaintiffs - Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff - Intervenor -
Appellee,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of California;
EDMUND G. BROWN, Jr., in his official
capacity as Attorney General of California;
MARK B. HORTON, in his official
capacity as Director of the California
Department of Public Health & State
Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
Planning for the California Department of
Public Health; PATRICK O’CONNELL,
in his official capacity as Clerk-Recorder
for the County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk for the
County of Los Angeles,
Defendants,
DENNIS HOLLINGSWORTH; GAIL J.
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KNIGHT; MARTIN F. GUTIERREZ;
MARK A. JANSSON;
PROTECTMARRIAGE.COM - YES ON
8, A PROJECT OF CALIFORNIA
RENEWAL, as official proponents of
Proposition 8; HAK-SHING WILLIAM
TAM,
Defendants - Intervenor,
and
COUNTY OF IMPERIAL; THE BOARD
OF SUPERVISORS OF THE COUNTY
OF IMPERIAL; ISABEL VARGAS, In
her official capacity as Deputy
Clerk/Deputy Commissioner of Civil
Marriages for the County of Imperial,
Movants - Appellants.
REINHARDT, Circuit Judge, concurring.
Today we file two orders in the appeals regarding the constitutionality of
California’s Proposition 8, which provides, “Only marriage between a man and a
woman is valid or recognized in California.” Put differently, the proposition
prohibits same-sex marriage. Marriage between individuals of the same sex is a
matter that is highly controversial in this country and in which the American
people have a substantial interest. Accordingly, these appeals present a question
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under the Fourteenth Amendment of the United States Constitution that is of
importance to the entire public. Oral argument before this court was viewed on
television and the Internet by more people than have ever watched an appellate
court proceeding in the history of the Nation,1 and by innumerable law students
across the country.2
Today’s two orders involve a procedural question known as “standing.” The
public may wonder why that issue is of such great importance, and what the
significance of our standing decisions is. For that reason, while I agree entirely
with our two dispositions, both of which are filed in the names of all three of us
who are considering the appeals and both of which represent our unanimous views,
I believe it desirable to set forth a few explanatory remarks of my own.
The standing problem arises out of a trend in our judicial system over the
past few decades. It is a trend that emphasizes technical rules over deciding cases
1
See, e.g., Tim Rutten, Monday’s Must-See TV, L.A. T IMES (Dec. 7, 2010);
Ashby Jones, On the Prop. 8 Arguments and the Cameras-in-the-Court Debate,
W ALL S TREET J. L AW B LOG (Dec. 7, 2010); Lisa Leff, Televised Gay Marriage
Hearing Draws Wide Audience, A SSOCIATED P RESS (Dec. 6, 2010).
2
See, e.g., Public Information Office, U.S. Court of Appeals for the Ninth
Circuit, Proposition 8 Arguments: Coming to a Law School Near You (Dec. 1,
2010), available at
http://www.ca9.uscourts.gov/datastore/general/2010/12/01/Prop8_LawSchools.pdf
.
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on the merits, and indeed over the merits themselves. Our system now
increasingly raises obstacles such as standing, mootness, ripeness, abstention, and
other procedural bars that preclude courts from deciding cases on the merits, and as
a result increasingly limits the access of individuals to the courts. Members of the
public familiar with cases such as Brown v. Board of Education and Roe v. Wade
might have thought that the constitutionality of Proposition 8 could readily be
decided when a legal challenge was made to it in federal court. However, in these
times, before we are free to decide such important questions the parties must often
overcome difficult procedural barriers. Why Congress and the Supreme Court
have required them to do so is a subject for another day, although I have made my
views on the subject clear elsewhere.3 Here the question is simply whether there is
standing.
The standing problem, under current Supreme Court doctrine, affects this
case in several ways, all relating to the question of whether there is an intervenor
opposed to the district court’s decision that has the right to appeal it. Should it be
3
See, e.g., Stephen Reinhardt, Life to Death: Our Constitution and How It
Grows, 44 U.C. D AVIS L. R EV. 391 (2010); Stephen Reinhardt, The Anatomy of an
Execution: Fairness vs. Process, 74 N.Y.U. L. R EV. 313 (1999); Stephen
Reinhardt, The Supreme Court, the Death Penalty, and the Harris Case, 102 Y ALE
L.J. 205 (1992); Stephen Reinhardt, Limiting Access to the Federal Courts: Round
Up the Usual Victims, 6 W HITTIER L. R EV. 967 (1984).
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held ultimately that there is no such intervenor, the consequences are unclear, other
than that we would be unable to review the district court decision on the merits;
what would follow thereafter could conceivably be a matter for future decision by
this court. All I can say now is that the issues concerning standing were wholly
avoidable in this case.
There can be little doubt that when the Plaintiffs filed this action their
purpose was to establish that there was a constitutional right to gay marriage, and
to do so by obtaining a decision of the Supreme Court to that effect.4 Yet,
according to what their counsel represented to us at oral argument, the complaint
they filed and the injunction they obtained determines only that Proposition 8 may
not be enforced in two of California’s fifty-eight counties. They next contend that
the injunction may not be appealed but that it may be extended to the remaining
fifty-six counties, upon the filing of a subsequent lawsuit by the Attorney General
4
See, e.g., Margaret Talbot, A Risky Proposal: Is It Too Soon to Petition the
Supreme Court on Gay Marriage, T HE N EW Y ORKER, Jan. 18, 2010, at 40; Jo
Becker, A Conservative’s Road to Same-Sex Marriage Advocacy, N.Y. T IMES,
Aug. 18, 2009, at A1 (“[B]inders stuffed with briefs, case law and notes . . . are
filled with arguments Mr. Olson hopes will lead to a Supreme Court decision with
the potential to reshape the legal and social landscape along the lines of cases like
Brown v. Board of Education and Roe v. Wade: the legalization of same-sex
marriage nationwide.”); Jesse McKinley, Bush v. Gore Foes Join to Fight Gay
Marriage Ban, N.Y. T IMES, May 27, 2009, at A1 (“In the end, the two lawyers
suggested, the case might take them, again, to the United States Supreme Court.”).
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in state court against the other County Clerks. Whether Plaintiffs are correct or
not, it is clear that all of this would have been unnecessary and Plaintiffs could
have obtained a statewide injunction had they filed an action against a broader set
of defendants, a simple matter of pleading. Why preeminent counsel and the major
law firms of which they are a part failed to do that is a matter on which I will not
speculate.
Next, the problem of standing would have been eliminated had the Governor
or the Attorney General defended the initiative, as is ordinarily their obligation.
Because they believed Proposition 8 to be unconstitutional, they did not do so here.
Whether their decision not to defend the initiative was proper is a matter of some
debate, although I sympathize with their view that in extraordinary circumstances
they possess that right. Once again, however, I express no ultimate view on the
question.
In any event, had Plaintiffs sued a broader class of defendants, there clearly
would have been parties who would have had standing to appeal the district court’s
decision, and who likely would have done so. Even had they not, it might not have
been difficult for those interested in defending the proposition to find an intervenor
with standing. Imperial County, one of the counties that voted in favor of
Proposition 8, sought to intervene, but for some unknown reason attempted to do
8
so through a deputy clerk who asserted her own rights instead of through the Clerk
who might have asserted hers. Again, this was a most puzzling legal decision.
While we have not ruled as to whether the Clerk would have had standing, we have
held that a deputy clerk does not. There are forty-two counties that voted in favor
of Proposition 8. Surely had those seeking an intervenor contacted other of those
counties instead of relying on Imperial County they could have found a Clerk who
would have presented the issue whether a Clerk rather than a deputy has standing.
None of this means that ultimately there is no standing in this case. Because
of a United States Supreme Court ruling regarding the availability of standing to
proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43
(1997), we have certified to the Supreme Court of California the question of an
initiative proponent’s authority and interests under California law. Although that
matter must be decided by the Supreme Court of California, Proponents advance a
strong argument on this point. Thus, in the end, there may well be standing to
maintain this appeal, and the important constitutional question before us may, after
all, be decided by an appellate court – ours, the Supreme Court, or both – and may
apply to California as a whole, instead of by being finally decided by a trial court,
or by default, in only two counties or in none. As a result, the technical barriers
and the inexplicable manner in which the parties have conducted this litigation may
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in the end not preclude an orderly review by the federal courts of the critical
constitutional question that is of interest to all Americans, and particularly to the
millions of Californians who voted for Proposition 8 and the tens of thousands of
same-sex couples who wish to marry in that state. In the meantime, while we await
further word from the Supreme Court of California, I hope that the American
public will have a better understanding of where we stand today in this case, if not
why.
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