FILED

FOR PUBLICATION JAN 04 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. No. 10-16696

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO, D.C. No. 3:09-cv-02292-VRW Northern District of California, Plaintiffs - Appellees, San Francisco

CITY AND COUNTY OF SAN

FRANCISCO, CONCURRENCE TO THE

CERTIFICATION ORDER

Plaintiff - Intervenor - AND PER CURIAM OPINION 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,

and

DENNIS HOLLINGSWORTH; GAIL J.

KNIGHT; MARTIN F. GUTIERREZ;

HAK-SHING WILLIAM TAM; MARK

A. JANSSON;

PROTECTMARRIAGE.COM - YES ON

8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8,

Defendants - Intervenors - Appellants.

2 KRISTIN M. PERRY; SANDRA B. No. 10-16751

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO, D.C. No. 3:09-cv-02292-VRW

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,

DENNIS HOLLINGSWORTH; GAIL J.

3

KNIGHT; MARTIN F. GUTIERREZ;

MARK A. JANSSON;

PROTECTMARRIAGE.COM - YES ON

8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8; HAK-SHING WILLIAM

TAM,

Defendants - Intervenor,

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.

REINHARDT, Circuit Judge, concurring.

Today we file two orders in the appeals regarding the constitutionality of

California’s Proposition 8, which provides, “Only marriage between a man and a

woman is valid or recognized in California.” Put differently, the proposition

prohibits same-sex marriage. Marriage between individuals of the same sex is a

matter that is highly controversial in this country and in which the American

people have a substantial interest. Accordingly, these appeals present a question

4 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 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

1 See, e.g., Tim Rutten, Monday’s Must-See TV, L.A. T IMES (Dec. 7, 2010); Ashby Jones, On the Prop. 8 Arguments and the Cameras-in-the-Court Debate, W ALL S TREET J. L AW B LOG (Dec. 7, 2010); Lisa Leff, Televised Gay Marriage Hearing Draws Wide Audience, A SSOCIATED P RESS (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 .

5 on the merits, and indeed over the merits themselves. Our system now

increasingly raises obstacles such as standing, mootness, ripeness, abstention, and

other procedural bars that preclude courts from deciding cases on the merits, and as

a result increasingly limits the access of individuals to the courts. Members of the

public familiar with cases such as Brown v. Board of Education and Roe v. Wade

might have thought that the constitutionality 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 questions the parties must often

overcome difficult procedural barriers. 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 doctrine, affects this

case in several ways, all relating to the question of whether there is an intervenor

opposed to the district court’s decision that has the right to appeal it. Should it be

3 See, e.g., Stephen Reinhardt, Life to Death: Our Constitution and How It Grows, 44 U.C. D AVIS L. R EV. 391 (2010); Stephen Reinhardt, The Anatomy of an Execution: Fairness vs. Process, 74 N.Y.U. L. R EV. 313 (1999); Stephen Reinhardt, The Supreme Court, the Death Penalty, and the Harris Case, 102 Y ALE L.J. 205 (1992); Stephen Reinhardt, Limiting Access to the Federal Courts: Round Up the Usual Victims, 6 W HITTIER L. R EV. 967 (1984).

6 held ultimately that there is no such intervenor, the consequences 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 decision by

this court. All I can say now is that the issues concerning 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 constitutional right to gay marriage, and

to do so by obtaining a decision 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 determines 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 subsequent lawsuit by the Attorney General

4 See, e.g., Margaret Talbot, A Risky Proposal: Is It Too Soon to Petition the Supreme Court on Gay Marriage, T HE N EW Y ORKER, Jan. 18, 2010, at 40; Jo Becker, A Conservative’s Road to Same-Sex Marriage Advocacy, N.Y. T IMES, 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. T IMES, May 27, 2009, at A1 (“In the end, the two lawyers suggested, the case might take them, again, to the United States Supreme Court.”).

7 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 initiative, 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 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 defendants, 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 proposition 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

8 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 standing, 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 initiatives, 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 interests 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 two counties or in none. As a result, the technical barriers

and the inexplicable manner in which the parties have conducted this litigation may

9 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.

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