Oral argument today on motion to derail Perry case

by on October 14, 2009  •  In Marriage

It's back to the battle stations today in Perry v. Schwarzenegger, the fancy lawyer face-off in the Northern District of California over the constitutionality of Prop 8. Judge Vaughn Walker will hear arguments on whether the complaint should be dismissed on the ground that there is no viable claim that Prop 8 is unconstitutional. I doubt very much whether the defendants will win their motion for summary judgment, but I do think they will try to persuade the Ninth Circuit to accept the case on appeal immediately if they lose. If they succeed in getting the case moved to the appellate court over this preliminary motion (the general rule is that there is only one appeal, after the entire case has ended in the trial court), then they will have achieved their secondary goal of delaying the case, and lengthening the time that Prop 8 is in effect.

The primary question facing the court is how to interpret Baker v. Nelson, a 1972 case in which the U. S. Supreme Court denied without hearing the appeal from a decision of the Minnesota Supreme Court that two men did not have the right to marry. The plaintiffs were appealing a ruling that the Minnesota law was constitutional under the federal Constitution. The Supreme Court dismissed the appeal "for lack of a substantial federal question"(FLSFQ).  In other words, the Court said in effect, the law on this question is so overwhelming that we can dismiss your arguments summarily, without having to go through the normal process of reading briefs and hearing argument.

Now the defenders of Prop 8 are arguing that Baker is binding precedent, such that only the Supreme Court can reverse it. Unless and until that happens, they argue, lower courts must rule that excluding same-sex couples from marriage is constitutionally unproblematic. This is what conservatives think is their legal ace-in-the-hole in marriage cases. Senator Grassley used it as a way to try to trap then nominee Sonia Sotomayor in her confirmation hearings. She initially responded that she did not recall Baker, and said that she would answer his question the following day. When she did respond, she said that she could not comment on whether Baker settled the question of whether marriage exclusions were constitutional because the precedential effect of a dismissal FLSFQ was itself a unsettled question on which she might have to rule as a Justice. (nice move) There was a bit of irony in having the Baker question come from a senator whose own state (Iowa) had legalized same-sex marriages, but hey – what's a little inconsistency among cronies.

In their opposition to summary judgment, plaintiffs are making two arguments that I think will carry the day.  The first is that a dismissal FLSFQ is binding only as to the precise issues presented in the earlier case, and the theory of the Baker appeal was that the Minnesota marriage law discriminated based on sex, which is not a claim in Perry. The second is that the import of such a dismissal is eroded when subsequent doctrinal developments undermine the legal basis for it, which has certainly occurred as a result of Romer v. Evans and Lawrence v. Texas.

However, even if Judge Walker rejects the argument that Baker predetermines his ruling in Perry, I would bet that the defendants will seek an immediate appeal, and use that move to delay the case.  It is already starting to seem unlikely that the parties in Perry will actually be ready for trial by January 14, the date initially set.

Meanwhile, lurking in the background is another issue that the judge could ask the parties about tomorrow, even though it is not calendared. The defendants are asking the court to stay further discovery (motion here) while they appeal an order that directed them to turn over information concerning the strategies and tactics used by Prop 8 proponents during the campaign. They argue that the forced exposure of these internal documents infringes the First Amendment, because it will chill expression in future ballot campaigns. I don't think the defendants have much chance with this motion either, but the outlines of an overarching strategy for delay are pretty easy to discern.


One Response to Oral argument today on motion to derail Perry case

  1. Mad Professah October 14, 2009 at 1:49 PM

    Get out the popcorn it’s gonna be a fun ride!

    (Heard you on KCRW’s To The Point yesterday–good work!

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