Supreme Court might dismiss Prop. 8 case on a technicality

SAN FRANCISCO — Lawyers leading the fight for gay marriage in California have been quietly preparing state officials for the possibility the U.S. Supreme Court might dismiss the case on a technicality next month without deciding the fate of Proposition 8.

The justices could decide that the sponsors of the ballot measure outlawing same-sex marriage had no legal right, or standing, to defend it in federal court. That would end the case in Washington, but it is not clear what it would mean for California.

If state officials declared Proposition 8 dead, relying on U.S. District Judge Vaughn R. Walker's 2010 ruling against the measure, same-sex weddings could commence within weeks or months. Or there could be another legal fight over the reach of Walker's ruling.

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That technicality has prompted fierce arguments among prominent law professors over legal procedure. Their debate has taken place on legal blogs, with scholars staking out sharply different stands.

"It's become a cottage industry," said Theodore J. Boutrous Jr., a lawyer for the challengers.

Depending on what the Supreme Court decides, a ruling on standing could provoke a fight over whether the San Francisco judge's decision applies statewide or only to the two couples who sued or the counties where they live, Los Angeles and Alameda.

On one side is Erwin Chemerinsky, dean of the UC Irvine law school. He says Walker's ruling affects all of California because it ordered state officials to stop enforcing Proposition 8. Marriage is a matter of state law, not local law, he said.

On the other is UC Davis law professor Vikram Amar, who says Walker's order would be limited because the suit was filed on behalf of two couples, not all gay couples, and included only two of the state's 58 counties as defendants.

Amar's point of view was bolstered by a liberal judge on the U.S. 9th Circuit Court of Appeals, who in 2011 chided the high-profile anti-Proposition 8 legal team for failing to have sued more defendants.

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Gay rights lawyers are counting on Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who support same-sex marriage, to view Walker's ruling as a statewide mandate and enforce it.

"We have definitely been communicating our views to them," Boutrous said.

University of Pennsylvania law professor Kermit Roosevelt said that even though he doubts Walker had the authority to issue a statewide ruling, Brown could choose to follow it.

"It would be perfectly permissible for the governor to say that this law has been held invalid, and I agree with that decision, and I will not enforce it any further," Roosevelt said.

Such a step conceivably could lead to same-sex weddings before a court even had time to rule on the breadth of Walker's ruling. The judiciary would still have the final say, though, and could stop the nuptials once a challenge was filed.

If the Supreme Court ruled that Proposition 8's sponsors had no right to appeal, then the 9th Circuit's decision, upholding Walker's ruling, would be wiped out, leaving only Walker's order. The high court could resolve any confusion by deciding the reach of Walker's injunction, or it could let lower courts resolve it.

During the 9th Circuit's hearing on the case, Judge Stephen Reinhardt grilled the Proposition 8 challengers on why they had not named more defendants to ensure a statewide impact.

"Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading," Reinhardt later wrote in a concurrence in a Proposition 8 order. "Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate."

Boutrous said the legal team considered filing a class action but decided it was unnecessary.