08/24/2010 12:58 pm ET | Updated May 25, 2011

Defending Prop 8: The Meg Whitman, Steve Cooley Morass -- With Insight from Lambda Legal's Jon Davidson

I've been a little surprise at the burst of attention over the "news" that Republican gubernatorial candidate Meg Whitman and attorney general candidate Steve Cooley would defend Prop 8 in the federal trial, if elected and given the opportunity.

Maybe it's just a California thing - but LGBTs here have been discussing this since before the primaries.  In fact, it was a key point during the April 25 Equality California Political Action Committee Forum with all the Democratic candidates for attorney general.  And I quoted EQCA's Geoff Kors raising the pointed in my June primary wrap up:

Meg is especially troubling because she actively supported Prop 8 and can use her office and tax-payer dollars to oppose the Prop 8 lawsuit - something Gov. Schwazenegger didn't do. And Jerry Brown is supporting the overturning of Prop 8. So there's no doubt that is having an impact on this case and we can't afford to let Meg Whitman change the state's position when it's up before the 9th Circuit and the US Supreme Court.

It is essential that our community get engaged in the November elections, raise money and do the work. These primaries are close - and our community really turned out and delivered and when we do that, people stand with us.

After Judge Walker's ruling on Aug. 4, Kors wrote a piece for the Huffington Post reiterating that fear. And in my Aug 6 reaction to Walker's initial stay of his ruling for both LGBT POV and Frontiers In LA, I used a quote from Cooley sent to me by Cooley's Log Cabin Republican-backer, Charles Moran:

Barring a law that is unconstitutional on its face, the proper role of an Attorney General is to enforce and defend the will of the People as manifested through the initiative or legislative process. The will of the People should be respected and not overturned easily or lightly. Today's decision by a federal judge overturning Proposition 8 should be appealed and tested at a higher level of our legal system. The California Supreme Court upheld Proposition 8 by a 6 to 1 vote and declared it to be constitutional. Likewise, if the voters had approved an initiative legalizing same-sex marriage and a federal judge had ruled against it, I would also support an appeal of that decision.

But there's been a splash of news over the GOP state candidates reiterating that they would defend Prop 8. The Sacramento Bee interviewed Whitman just before the Republican state convention at the boycotted Manchester Grand Hyatt Hotel in San Diego Saturday. Whitman said:

"The issue right now is, as I understand it, is 'Will Proposition 8 have the appropriate support to actually make an appeal to the Circuit Court of Appeals?'

"And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through," she continued. "So if I was governor, I would give that ruling standing to be able to appeal to the circuit court."

Sterling Clifford, a spokesperson for her Democratic gubernatorial opponent Jerry Brown, told The Bee:

"I'm not sure she really understands the law," Clifford said. "That's a complicated legal question that someone who's shown herself unfamiliar with government matters most of her life clearly has no grasp of."

The Courage Campaign "played down" the issue. Courage founder Rick Jacobs noted that the 9th Circuit Court of Appeals still has to determine if the initiative's sponsor Protect Marriage has legal standing to defend Prop 8 in the first place since they are not the "official" government-defenders in the Perry v Schwarzenegger case and both Gov. Schwarzenegger and Brown have decided not to appeal on the state's behalf.  As LGBT POV reported last Monday, Aug. 16, there's a hearing on the standing issue scheduled for the week of Dec. 6, roughly a month after the California elections. But if they win and therefore would presumably have the authority and standing to defend Prop 8 as the new government-defenders, Whitman would not take office on Jan. 3.

"She wouldn't be governor yet," Jacobs told The Bee. "The appeals court will decide before there would be a change of governor and attorney general."

That may be so, says Lambda Legal's Legal Director Jon Davidson, but that doesn't mean that the Whitman and Cooley camps can't figure out some legal maneuvers to impact the federal Prop 8 case. As EQCA's Kors continues to point out, the elections are still incredibly significant. And it is not easy to predict what the possible 9th Circuit panels might do. Here's Davidson's analysis:

At the time of the oral argument that has been scheduled for December 6th, even were Whitman or Cooley to have won the election, they will not have taken office -- the new officeholders don't take office until Jan. 3. 2011.

In addition, at that point, the time to file an appeal from Judge Walker's ruling will have long passed.  So, even were they to win, they would not be able to appeal Judge Walker's ruling if Schwarzenegger and Brown do not -- and they have indicated they will not.  In addition, Whitman and Cooley would not be able to participate in the oral arguments as parties.

They might seek to file amicus (friend-of-the-court briefs).  The deadline for filing such briefs is seven days after the brief is due from the party you are supporting.  Amicus briefs in support of the proponents of Prop. 8 are due September 24th.

It would be unusual for a candidate for political office to file an amicus brief on a measure that they might be in more of a position to weigh in on were they elected, though I guess it could happen.

If they get elected, Whitman and/or Cooley might also seek to file an amicus brief after their election or after they are sworn in, which would be after the oral argument.  They would need to seek permission to file late.  There is no way of knowing whether the Ninth Circuit judges hearing the case would grant such a request to file late. (emphasis mine)

Once the 3-judge panel of the Ninth Circuit issues its decision, a party may ask that the case be reheard by the original 3-judge panel or, in the alternative that it be heard 'en banc' by a group of eleven randomly-assigned judges out of the 27 judges on the Ninth Circuit. I believe the presiding judge on the Ninth Circuit -- Judge Alex Kosinzki --- would be on the en banc panel regardless, if en banc hearing is granted.

After that, there is a very rarely procedure where someone could ask for a hearing by all 27 judges on the Ninth Circuit.  If no petition for rehearing and/or rehearing en banc is made, or if it's made and denied, or if it's granted, after it's decided, then a party can ask the Supreme Court to hear the case.

If the Prop 8 proponents are denied standing and there has been no other appeal, they could at least appeal the denial of standing.  If the Ninth Circuit denied standing but went on to reach the merits of the case against them, the Prop 8 proponents would presumably try to brief the merits as well as part of their standing appeal.

If Whitman or Cooley are elected, they definitely could submit amicus briefs setting forth their positions at any of these stages.  There is precedent for newly-elected officials doing this after they take office when their predecessors did not appeal.    It therefore matters significantly whether or not they are elected. (emphasis mine)

What I am not sure about, and have not had time to research, is whether, when a government official or body fails to appeal to one level of a court system, a new government official who wants to appeal on his or her own behalf or on behalf of a government body is entitled to do so.  I would guess not.

Meanwhile as the Williams Institute's Nan Hunter notes on her blog:

In Perry, Imperial County has appealed Judge Walker's ruling denying its motion to intervene as defendant. This is important, because if the Ninth Circuit allows intervention, an official government entity would be defending Prop 8, and the question of the standing of the Prop 8 proponents would become less central. Imperial County's appeal is set to proceed on the same timetable as the rest of the Perry case, so that the county's case will be included at oral argument. The county is being represented by lawyers from Advocates for Faith and Freedom."

However, in an Aug. 8 post on LGBT POV, Davidson noted this about Imperial Valley:

"Notice of Appeal means that Imperial County is seeking to appeal Judge Walker's order denying them intervention.  Judge Walker ruled that they had no right to intervene because they would not harmed by an order striking down Prop 8 (unlike San Francisco which showed that it was being harmed financially by same-sex couples being precluded from marrying) and because local officials have only a ministerial duty to comply with state law, whatever it is.  He also denied them intervention because as subdivisions of the state, counties have no right to join a case in which state defendants are already parties.  They are trying to appeal out of fear the proponents lack standing to appeal, but Walker already held, in denying Imperial County intervention, that the County has no standing to appeal, so this should not help."

What worries me is how unpredictable the courts and the judges are. Remember, the California Supreme Court ruled that gays and lesbians had been denied the fundamental constitutional right to marry and then granted that right -- only to totally ignore their own ruling and its impact on the LGBT community which they officially declared a protected minority class by upholding Prop 8 on a technicality.

On the other hand, let's not forget that all these appeals are not happening without a response from the plaintiffs' incredible legal team, which includes Ted Olson and David Boies.

The most important thing to remember as the federal Perry case proceeds is that marriage is treated differently from any other social issue.  After all, even the President of the United States, a constitutional scholar and a product of a once-illegal bi-racial marriage, believes "separate but equal" is OK when it comes to same sex couples.