This Law Blog has been tracking the same-sex marriage case out of California.  We covered Perry vs Schwarzenegger in an earlier post detailing the players and the issue framed in the constitutional law suit that originated in a federal court in San Fransisco.

Since our last post on this topic, the trial court judge issued a lengthily opinion last August, ruling that California’s Proposition 8 was unconstitutional, enjoining further enforcement.  Proponents of the marriage ban appealed to the Ninth Circuit.

The U.S. Ninth Circuit Court of Appeals has stayed the trial court ruling, however,  while the appeal is pending.  Recently, televised oral arguments were conducted on the case before a 3-judge appellate panel.  


Federal appellate arguments are rarely, if ever, televised; testament to the national interest in the case.

The federal appellate court appears to be trying to figure out what, exactly, should be the scope of their ruling.  Most federal judges, particularly appellate judges, eschew rulings that become broad constitutional pronouncements.

According to the SCOTUS analyst Lyle Denniston, the Ninth Circuit’s Perry panel seems likely to nullify the ban against same-sex marriage, “provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.”

The initial arguments in the case before the Ninth Circuit concerned whether the appellants even had proper standing to appeal Judge Vaughn Walker’s ruling.  California’s top government officials, the governor and the attorney general, have refused to defend Prop 8, or to appeal the trial court’s ruling.

At least one of the judges on the appellate panel was troubled that no state actors showed up to argue the case.  The appellate judge suggested that perhaps the issue could be posed to the California Supreme Court for a determination as to whether California law would allow any entity to stand in as a legal “proxy” for the suit.

Perry’s well-heeled lawyers stated in response to the suggestion that even if California law allowed a proxy-style legal fight, the proxy would be unable to demonstrate how they were harmed by lifting the ban against same-sex marriage.


Scholars of the appellate courts compare this case to the famous SCOTUS decision in Loving v Virginia, which struck down state laws banning marriage between African Americans and whites.  We wonder how the Loving case would have been decided if Mr. Loving's "bride" was a man instead of a woman.

This Perry case could be our chance to find out the 21st Century answer to that question.  As a decision from the appellate court is expected soon, perhaps by the end of the year, we must ask that you to stay tuned in on this case.

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