Ted Olson, the lead counsel of the American Foundation for Equal Rights' lawsuit seeking to overturn Proposition 8, California's 2008 initiative amending the state's constitution to ban same-sex couples from marrying, was at the podium. State Supreme Court Justice Ming Chin asked, "If the governor and attorney general do not defend, then no one can defend it?"
After hedging and then getting some pushback from elsewhere on the bench, Olson replied, "Yes."
Following the decision by U.S. District Court Judge Vaughn Walker striking down Prop. 8 as unconstitutional a year ago, attention turned to whether there would be an appeal. Once the state officials named as defendants in the case -- including California Governor Arnold Schwarzenegger and then-state Attorney General Jerry Brown -- decided not to appeal the decision, the proponents of Prop. 8, represented in district court by Charles Cooper and members of the conservative Alliance Defense Fund, were left as the only party to defend the same-sex-marriage ban.
But before the Ninth Circuit can review questions about "fundamental rights" like marriage and issues of "equal protection" of the laws, the judges first need to decide that the proponents have the right to be there. The issue, "standing," is required under the U.S. Constitution. Article III requires that all matters before the federal courts be "cases" or "controversies" that involve litigants with an actual stake in the outcome. Many marriage-equality advocates -- including the lawyers who brought the case against Prop. 8 -- have argued that these proponents, who filed the initiative, should not have standing to challenge the lower-court decision. While in the short term this effort may benefit those seeking marriage rights in California, it raises significant questions about the progressive legal movement and the long-term aims of LGBT legal advocacy.
The three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that is hearing the appeal of the Prop. 8 decision sent a certified question about interpretation of California law to the state's high court, which will provide an answer to the Ninth Circuit within 90 days of the September 6 arguments. At that point, the Ninth Circuit will have to consider the California Supreme Court's answer about the state law -- and some unclear U.S. Supreme Court guidance on the issue -- to reach its decision about whether federal standing exists for the proponents to appeal.
At the California Supreme Court, several justices questioned whether the course sought by Olson would in effect nullify California voters' initiative right. Cooper decried the "breathtaking scope" of the power of the executive officers that would result should Olson's argument succeed.
It was this legitimacy question that I first raised in the days after U.S. District Court Judge Vaughn Walker issued his ruling in August 2010.
Challenging same-sex-marriage opponents' right to appeal, I wrote at that time, "gives unnecessary ammunition to opponents of marriage equality, who have been trying to argue that going to court at all is somehow 'unfair' for trying to 'overturn the will of the voters.' The 'will of the voters' argument, however, is bunk because it doesn't matter what one state's voters want if their action violates the federal Constitution."
My concern, though, rested on the fact that "the appellate courts are the safeguard of the federal judiciary. A federal district court judge -- like Walker -- is subject to review from the Ninth Circuit, which is then subject to the review of the Supreme Court.
"[T]rying to stop that appellate process," I cautioned, "risks giving legitimacy to what has been, thus far, an illegitimate argument."
Fast-forward a year, and California Supreme Court Justice Joyce Kennard was telling Olson that "agreeing with [him] would not promote principles of fundamental fairness."
And still, after the oral arguments were finished, it was LGBT legal leaders who were out decrying the proponents' arguments in stark terms.
"Permitting special-interest groups to usurp that decision-making authority [of the governor and attorney general] would dramatically change the current law and take a giant step down the road of turning California into a mobocracy," said Shannon Minter, the legal director at the National Center for Lesbian Rights.
Jon Davidson, the legal director at Lambda Legal stated, "A philosophical interest based on prejudice against lesbian and gay people should not be enough to gain access to federal courts."
Minter and Davidson have the interests of the same-sex couples currently being prevented from marrying in California in mind, and their motives in that regard are beyond dispute. Their argument -- that allowing the full power of the federal court process to take its full course is somehow a "giant step" toward a "mobocracy" and would be supporting an irrational act of prejudice -- doesn't make sense in a traditional liberal understanding of the importance of access to justice.
Restricting court access has traditionally been a tool of the conservative legal movement, while access to the courts has been one of the great safeguards of liberal legal efforts. In his opinion agreeing with the decision to send the certified question to the California Supreme Court, liberal Ninth Circuit Judge Stephen Reinhardt raised this concern, writing, "Our system now increasingly raises obstacles such as standing ... 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."
LGBT equality is an idea whose time has come, as Americans of all backgrounds come to respect the importance of this decades-old cause. Process, though, is an important piece of legitimacy. LGBT legal advocates are wrong to be united in fighting access to the courts -- which has so often aided in equality advancements -- in this case.
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