Deciding Who Has the Right to Defend the Gay Marriage Ban

Today, lawyers on both sides of the gay marriage fight will be back in court. This is the appeal from the lower court ruling on California’s Proposition 8, in which the Ninth Circuit Court of Appeals is being asked to decide whether the United States Constitution guarantees the right to gay marriage. 

But it is not that simple. As is often the case with complex legal stories, the reporting has been a little bit off the mark on the primary legal issue in the case. The issue is not only whether gays have a right to marry. The primary issue before the judges is whether the case can be appealed at all.

 A little review, therefore, is in order. Earlier this year, another judge, in a lower court, Judge Vaughn Walker, ruled that the 2008 ballot initiative that changed California's constitution to ban gay marriage was unconstitutional. The backers of the initiative appealed, setting up today's showdown.

Unlike judges in exciting television legal dramas, judges in real life must deal with the mundane procedural issues presented in a case before they can address the attention-grabbing constitutional issues also raised. Despite all the political and emotional controversy surrounding the larger gay marriage issue, the first order of business before the panel today will not be gay marriage. Instead, the panel has set aside a full hour to first hear whether the case can be appealed at all.

When David Boies and Ted Olson brought their case against Proposition 8 last year, neither California Governor Arnold Schwarzenegger nor Attorney General Jerry Brown chose to defend it. Instead, the group behind the proposition, the Alliance Defense Fund, defended it in court. Now that Judge Walker has ruled against them, it is not clear whether the group has standing to appeal. (Generally, the parties that can challenge a decision overturning a state law are the parties that represent the state, not a private group — no matter how involved in the campaign for the law it was.)

For his part, Judge Walker has expressed strong doubts that the Proposition 8 backers will be allowed to go forward, but he left that issue for the appellate court. So, the Ninth Circuit has asked the lawyers to demonstrate why their appeal should go forward; they will spend half the allotted two hours Monday on the issue. Only in the second hour will they get to the actual legality of same-sex marriage.

If the Prop 8 backers can't convince the panel that they have standing to appeal Judge Walker's decision, the ruling striking down Prop 8 will stand. With that, gay marriages in California will resume.

Of course, any decision on standing can — and most likely will — be appealed from the Ninth Circuit to the United States Supreme Court. The Supreme Court will, of course, have discretion to hear the case itself or let whatever ruling the Ninth Circuit renders stand. Ultimately, I predict the Supreme Court will have the last word on gay marriage.

Jami Floyd is a broadcast journalist and legal analyst for cable and network news, and is a frequent contributor to WNYC Radio. She is former advisor in the Clinton administration and served as a surrogate for the Obama campaign on legal and domestic policy issues.