The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B.
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff-Intervenor-Appellee,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of
California; EDMUND G. BROWN, JR.,
in his official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California
Department of Public Health &
State Registrar of Vital Statistics;
LINETTE SCOTT, in her official
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles,
Defendants,
567
568 PERRY v. SCHWARZENEGGER
and
DENNIS HOLLINGSWORTH; GAIL J. No. 10-16696
KNIGHT; MARTIN F. GUTIERREZ;
D.C. No.
HAK-SHING WILLIAM TAM; MARK
3:09-cv-02292-
A. JANSSON;
PROTECTMARRIAGE.COM-YES ON 8, A
VRW
Northern District of
PROJECT OF CALIFORNIA RENEWAL,
California,
as official proponents of
San Francisco
Proposition 8,
Defendants-Intervenors-Appellants.
KRISTIN M. PERRY; SANDRA B.
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff-Intervenor-Appellee,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of
California; EDMUND G. BROWN, JR.,
in his official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California
Department of Public Health &
State Registrar of Vital Statistics;
PERRY v. SCHWARZENEGGER 569
LINETTE SCOTT, in her official
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles,
Defendants, No. 10-16751
DENNIS HOLLINGSWORTH; GAIL J. D.C. No.
KNIGHT; MARTIN F. GUTIERREZ; 3:09-cv-02292-
VRW
MARK A. JANSSON;
PROTECTMARRIAGE.COM - YES ON 8, CONCURRENCE
A PROJECT OF CALIFORNIA RENEWAL, TO THE
as official proponents of CERTIFICATION
Proposition 8; HAK-SHING WILLIAM ORDER AND PER
TAM, CURIAM OPINION
Defendants-Intervenors,
and
COUNTY OF IMPERIAL; THE BOARD OF
SUPERVISORS OF THE COUNTY OF
IMPERIAL; ISABEL VARGAS, In her
official capacity as Deputy
Clerk/Deputy Commissioner of
Civil Marriages for the County of
Imperial,
Movants-Appellants.
Filed January 4, 2011
570 PERRY v. SCHWARZENEGGER
Before: Stephen Reinhardt, Michael Daly Hawkins, and
N. Randy Smith, Circuit Judges.
ORDER
REINHARDT, Circuit Judge, concurring:
Today we file two orders in the appeals regarding the con-
stitutionality of California’s Proposition 8, which provides,
“Only marriage between a man and a woman is valid or rec-
ognized in California.” Put differently, the proposition prohib-
its same-sex marriage. Marriage between individuals of the
same sex is a matter that is highly controversial in this coun-
try and in which the American people have a substantial inter-
est. Accordingly, these appeals present a question under the
Fourteenth Amendment of the United States Constitution that
is of importance to the entire public. Oral argument before
this court was viewed on television and the Internet by more
people than have ever watched an appellate court proceeding
in the history of the Nation,1 and by innumerable law students
across the country.2
Today’s two orders involve a procedural question known as
“standing.” The public may wonder why that issue is of such
great importance, and what the significance of our standing
decisions is. For that reason, while I agree entirely with our
two dispositions, both of which are filed in the names of all
1
See, e.g., Tim Rutten, Monday’s Must-See TV, L.A. TIMES (Dec. 7,
2010); Ashby Jones, On the Prop. 8 Arguments and the Cameras-in-the-
Court Debate, WALL STREET J. LAW BLOG (Dec. 7, 2010); Lisa Leff, Tele-
vised Gay Marriage Hearing Draws Wide Audience, ASSOCIATED PRESS
(Dec. 6, 2010).
2
See, e.g., Public Information Office, U.S. Court of Appeals for the
Ninth Circuit, Proposition 8 Arguments: Coming to a Law School Near
You (Dec. 1, 2010), available at http://www.ca9.uscourts.gov/datastore/
general/2010/12/01/Prop8_LawSchools.pdf.
PERRY v. SCHWARZENEGGER 571
three of us who are considering the appeals and both of which
represent our unanimous views, I believe it desirable to set
forth a few explanatory remarks of my own.
The standing problem arises out of a trend in our judicial
system over the past few decades. It is a trend that emphasizes
technical rules over deciding cases on the merits, and indeed
over the merits themselves. Our system now increasingly
raises obstacles such as standing, mootness, ripeness, absten-
tion, and other procedural bars that preclude courts from
deciding cases on the merits, and as a result increasingly lim-
its the access of individuals to the courts. Members of the
public familiar with cases such as Brown v. Board of Educa-
tion and Roe v. Wade might have thought that the constitu-
tionality of Proposition 8 could readily be decided when a
legal challenge was made to it in federal court. However, in
these times, before we are free to decide such important ques-
tions the parties must often overcome difficult procedural bar-
riers. Why Congress and the Supreme Court have required
them to do so is a subject for another day, although I have
made my views on the subject clear elsewhere.3 Here the
question is simply whether there is standing.
The standing problem, under current Supreme Court doc-
trine, affects this case in several ways, all relating to the ques-
tion of whether there is an intervenor opposed to the district
court’s decision that has the right to appeal it. Should it be
held ultimately that there is no such intervenor, the conse-
quences are unclear, other than that we would be unable to
review the district court decision on the merits; what would
follow thereafter could conceivably be a matter for future
3
See, e.g., Stephen Reinhardt, Life to Death: Our Constitution and How
It Grows, 44 U.C. DAVIS L. REV. 391 (2010); Stephen Reinhardt, The
Anatomy of an Execution: Fairness vs. Process, 74 N.Y.U. L. REV. 313
(1999); Stephen Reinhardt, The Supreme Court, the Death Penalty, and
the Harris Case, 102 YALE L.J. 205 (1992); Stephen Reinhardt, Limiting
Access to the Federal Courts: Round Up the Usual Victims, 6 WHITTIER
L. REV. 967 (1984).
572 PERRY v. SCHWARZENEGGER
decision by this court. All I can say now is that the issues con-
cerning standing were wholly avoidable in this case.
There can be little doubt that when the Plaintiffs filed this
action their purpose was to establish that there was a constitu-
tional right to gay marriage, and to do so by obtaining a deci-
sion of the Supreme Court to that effect.4 Yet, according to
what their counsel represented to us at oral argument, the
complaint they filed and the injunction they obtained deter-
mines only that Proposition 8 may not be enforced in two of
California’s fifty-eight counties. They next contend that the
injunction may not be appealed but that it may be extended
to the remaining fifty-six counties, upon the filing of a subse-
quent lawsuit by the Attorney General in state court against
the other County Clerks. Whether Plaintiffs are correct or not,
it is clear that all of this would have been unnecessary and
Plaintiffs could have obtained a statewide injunction had they
filed an action against a broader set of defendants, a simple
matter of pleading. 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.
Next, the problem of standing would have been eliminated
had the Governor or the Attorney General defended the initia-
tive, as is ordinarily their obligation. Because they believed
Proposition 8 to be unconstitutional, they did not do so here.
Whether their decision not to defend the initiative was proper
4
See, e.g., Margaret Talbot, A Risky Proposal: Is It Too Soon to Petition
the Supreme Court on Gay Marriage, THE NEW YORKER, Jan. 18, 2010, at
40; Jo Becker, A Conservative’s Road to Same-Sex Marriage Advocacy,
N.Y. TIMES, Aug. 18, 2009, at A1 (“[B]inders stuffed with briefs, case law
and notes . . . are filled with arguments Mr. Olson hopes will lead to a
Supreme Court decision with the potential to reshape the legal and social
landscape along the lines of cases like Brown v. Board of Education and
Roe v. Wade: the legalization of same-sex marriage nationwide.”); Jesse
McKinley, Bush v. Gore Foes Join to Fight Gay Marriage Ban, N.Y.
TIMES, May 27, 2009, at A1 (“In the end, the two lawyers suggested, the
case might take them, again, to the United States Supreme Court.”).
PERRY v. SCHWARZENEGGER 573
is a matter of some debate, although I sympathize with their
view that in extraordinary circumstances they possess that
right. Once again, however, I express no ultimate view on the
question.
In any event, had Plaintiffs sued a broader class of defen-
dants, there clearly would have been parties who would have
had standing to appeal the district court’s decision, and who
likely would have done so. Even had they not, it might not
have been difficult for those interested in defending the prop-
osition to find an intervenor with standing. Imperial County,
one of the counties that voted in favor of Proposition 8,
sought to intervene, but for some unknown reason attempted
to do so through a deputy clerk who asserted her own rights
instead of through the Clerk who might have asserted hers.
Again, this was a most puzzling legal decision. While we
have not ruled as to whether the Clerk would have had stand-
ing, we have held that a deputy clerk does not. There are
forty-two counties that voted in favor of Proposition 8. Surely
had those seeking an intervenor contacted other of those
counties instead of relying on Imperial County they could
have found a Clerk who would have presented the issue
whether a Clerk rather than a deputy has standing.
None of this means that ultimately there is no standing in
this case. Because of a United States Supreme Court ruling
regarding the availability of standing to proponents of initia-
tives, Arizonans for Official English v. Arizona, 520 U.S. 43
(1997), we have certified to the Supreme Court of California
the question of an initiative proponent’s authority and inter-
ests under California law. Although that matter must be
decided by the Supreme Court of California, Proponents
advance a strong argument on this point. Thus, in the end,
there may well be standing to maintain this appeal, and the
important constitutional question before us may, after all, be
decided by an appellate court — ours, the Supreme Court, or
both — and may apply to California as a whole, instead of by
being finally decided by a trial court, or by default, in only
574 PERRY v. SCHWARZENEGGER
two counties or in none. As a result, the technical barriers and
the inexplicable manner in which the parties have conducted
this litigation may in the end not preclude an orderly review
by the federal courts of the critical constitutional question that
is of interest to all Americans, and particularly to the millions
of Californians who voted for Proposition 8 and the tens of
thousands of same-sex couples who wish to marry in that
state. In the meantime, while we await further word from the
Supreme Court of California, I hope that the American public
will have a better understanding of where we stand today in
this case, if not why.