Why California gay marriage ruling may not head to US Supreme Court
US District Judge Vaughn Walker, who invalidated Proposition 8, doubts the proponents of California's gay marriage ban have any standing to appeal his ruling.
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Absent other state government defense for the statute, Imperial County, Calif., filed to intervene. Two-thirds of voters in the county east of San Diego backed Proposition 8, and its board of supervisors voted in 2009 to intervene on its behalf. Walker denied that motion.
Brown says Walker stacked the deck in favor of same-sex marriage supporters by allowing San Francisco to intervene in the case but not Imperial County.
Accompanying his decision striking down Proposition 8, Walker wrote: "California law provides no basis for Imperial County’s assertion that it has an interest in California marriage law, much less that its interests here are not adequately represented by an existing California defendant.”
"Given that Prop 8 is a state constitutional amendment, it's not clear that a mere county-level government would be enough," says Professor Cruz. And even if it is allowed to join the case as an intervener, the county would need to prove that it stood to be adversely affected by the repeal of Proposition 8, he says.
Baker v. Nelson
Brown says Walker's personal bias will be evident to the Ninth Circuit when it considers the appeal of Protect Marriage. Particularly egregious, he says, is that Walker ignored the most obvious precedent, Baker v. Nelson, a Minnesota Supreme Court case dismissed by the US Supreme Court in 1972.
In that case, the high court dismissed the appeal of a same-sex couple who argued that by forbidding them to marry, the state's laws violated their constitutional rights to privacy, due process, and equal protection clauses. That dismissal is seen by some as a decision on the merits of the case because it came through mandatory appellate review, and thus an endorsement of marriage as between one man and one woman.
"The district court did not confront the Supreme Court’s holding in Baker, binding authority from this Court, or any of the well established lines of authority opposed to its conclusions. It did not distinguish them. It did not explain why it believed they were wrongly decided. It did not even acknowledge their existence. It simply ignored them," wrote Proposition 8 backers in their filing with Ninth Circuit to request an indefinite stay of Walker's ruling until all appeals can be heard.
Cruz says neglecting to address Baker is not as black and white as Brown makes it sound.
"There are very different factual and legal backgrounds" between the two cases, Cruz says. "At the time Baker was decided, Supreme Court equal protection law was very different from as it stands today," he says.
"When the Supreme Court dismissed the appeal [in 1972], Minnesota didn't have anything resembling a domestic partnership law," he adds. "California had already extended rights of marriage to same-sex couples," he says, so the reason why Minnesota may not have allowed same-sex couples to marry is different than California's.