subject: Imperial County Submits Appeal In Proposition 8 Case [print this page] On September 17 Imperial County presented its opening brief in the Proposition 8 court case to the 9th US Circuit Court of Appeals. This appeal is particularly significant because the opponents of Proposition 8 claim (maybe correctly) that the other supporters of the initiative do not have legal standing to appeal Judge Walker's decision that Proposition 8 violates the US Constitution.
Judge Walker's jurisdiction covers only northern California. Thus, if no one with standing appeals his decision, we may be left with same sex marriage being legal in northern California but still illegal in southern California. Curiously, it may be in our best interest that some opponent of proposition 8 has legal standing to appeal Judge Walker's decision.
Imperial County had attempted to intervene in the case when it was being heard at the US circuit court level. However, Judge Walker, who heard that case, ruled that the county did not have legal standing to intervene in the case. So, a large part of the county's brief submitted to the appeals court is dedicated to providing evidence to demonstrate that Imperial County does have legal standing to intervene. However, the brief dealt with the substantive constitutional issues before the court as well.
More specifically the brief makes the following points:
- Imperial County and its County Clerk have legal standing to appeal Judge Vaughn Walker's decision on Proposition 8 because:
Under the California Constitution, they have the duty to enforce proposition 8.
The county government and county clerk have a "protectable interest" that allows them to intervene.
The District Court's decision significantly impaired those protectable interests.
The existing parties will not adequately represent the county's interests.
The brief describes the protectable interest as follows:
Under the California Family Code, and Government Code, county clerks are Commissioners of Civil Marriages. They issue marriage licenses and perform marriages. The brief contends that, if Judge Walker's decision stands, county clerks will be put in an untenable position. They will have to decide whether to enforce the decision, or to comply with the state constitution which currently contains the Proposition 8 language banning same sex marriage.
They note that, Judge Walker's court only has jurisdiction over the northern counties in California. Thus, unless his decision is appealed, it would appear that same sex marriage is legal in Northern California but still prohibited by the state constitution in Southern California.
The brief, however, also notes that Article III of the state constitution (in Section 3.5, paragraph a) prohibits any agent of the state, including county clerks, from obeying a court order that invalidates a state law, or a provision of the state constitution, unless it has been ordered to do so by an appeals court. (Note: You can see a copy of this wording in the state constitution by directing your browser to: http://www.calcomui.org/californiaconstitution.html then clicking on "Table of Contents of California Constitution" and finally clicking on "Article III".
The brief also notes that Judge Walker may have exhibited disparate treatment of Imperial County, and the City and County of San Francisco. San Francisco asked to be heard in Judge Walker's trial of the case and Judge Walker agreed to let them do so. But he refused to allow Imperial County to do so. San Francisco opposes proposition 8 while Imperial County supports it.
The Imperial County brief noted that counties have frequently been sued by same sex couples who have been refused marriage licenses and alleged that this is likely to continue. This too, they said, gives them legal standing in the appeals court trying of this issue.
On the critical constitutional issue, the Imperial County brief noted that a very similar case had been tried in 1972. In that case (Baker v. Nelson) Richard Baker and his partner James McConnell claimed that Minnesota's ban on same sex marriage violated their fundamental right to marry under the Due Process Clause of the Fourteenth Amendment; discriminated based on gender, contrary to the Equal Protection Clause of the Fourteenth Amendment; and deprived them of privacy rights flowing from the ninth ammendment to the US Constitution. They used those arguments in an appeal to the US Supreme Court seeking the overturning of a decision of the Minnesota Supreme Court which said Minnesota's ban on same sex marriage was legal and constitutional.
Judge Walker, in his decision on Proposition 8, essentially said Proposition 8 is unconstitutional for all of those same reasons. However, on October 10, 1972, the U.S. Supreme Court issued a one-sentence order dismissing Baker and McConnell's appeal "for want of a substantial federal question."
It is entirely possible that our current Supreme Court would simply abide by that precedent and overturn any court decision saying Proposition 8 violates the US Constitution.
You can read the Imperial County opening brief by directing your browser to the following address: http://www.calcomui.org/prop8courtdocs.html and then scroll down to and click on "Imperial County Opening Brief".
Boyce Hinman
California Communities United Institute
Imperial County Submits Appeal In Proposition 8 Case
