Backers and opponents of Proposition 8, California’s same-sex marriage ban, will have their day in court December 6th. The hearing will be televised on C-SPAN.

The Ninth Circuit Court of Appeals in San Francisco this week outlined the issues they want both sides to address in the two-hour hearing (expanded from the original one hour). The hearing will be split in two — with the first half exploring whether supporters of Prop. 8 — including Imperial County — have legal standing to appeal Judge Vaughn Walker’s ruling that struck down the ban. In the second hour both sides will argue the constitutional questions — whether the ban on same-sex marriage passed by voters is prohibited by the U.S Constitution.

What happens if the court decides neither Prop. 8 backers nor Imperial County have standing to appeal? Some legal experts say the Court could simply dismiss the appeal and let Judge Walker’s decision stand as is. But UC Davis Law Professor Vikram Amar has a very different take. He thinks this could essentially erase the lower court decision leading to a default judgment in favor of the two same sex couples — allowing them to marry. But, Amar says, since this wasn’t a class action law suit, the judgment would only apply to them — but not other gay or lesbian couples who might want to get married.

You can hear my full conversation with him here:


A subsequent conversation with UC Hastings law professor David Levine suggested a very different scenario: If the plaintiffs are denied standing the appeal is simply dismissed and Judge Walker’s decision stands — most likely applying to all couples who want to tie the knot.

Legal experts think the case will ultimately be decided by the U.S. Supreme Court.


Proposition 8 Lawsuit: Unintended Legal Consequences? 12 March,2013Scott Shafer

  • pgm

    Gee,do you think that the outcome which was presided over by a closeted gay judge,in a the gay Mecca of the US,by the most over turned US circuit court of appeals would have been any differnt than what it was?

    • Michael

      Vaughn Walker was not closeted.

    • FlexSF

      You’ve got credit to attack Walker’s ruling, but not taken seriously for attacking his sexuality. His ruling is backed with evidence and legal precedent, not with his personal views based on his sexuality, and a layman whose read the ruling could agree. According to you, only a straight judge should’ve decided this. Are you in 5th grade? Would the ideal judge, according to you, be a straight male or female? Open your tiny mind; your point of view is mid-evil.

      If Walker had ruled to uphold proposition 8, nobody would be raising any questions about Walker’s sexuality, but for you, it’s obvious you disagree with his ruling, and the vile legal team defending 8 doesn’t go as low as you.

    • FlexSF

      San Francisco is a gay mecca? How do you know what everyone’s sexuality is? What about all of the straight San Franciscans? Do they view San Francisco as a gay mecca?

    • eames

      really, pgn? do you think the idiocy of your comment in any way confirms that your head is firmly planted up your backside?

    • Aims

      Cleary, only a bisexual judge could fairly decide this trial.

  • Tony Jasinski

    PGM is right. Only a straight man should have been allowed to be the judge in this case. And only gay men should be allowed to be a judge in any case related to heterosexuals.
    Actually, PGM would probably prefer that only rich, white men have the chance to make this decision. After all, they own this country.

  • 9R

    A Priori comments have no standing. “Experts” and Professors do not sit on the bench. Watch the telecast. I do dearly wish Newspeople and Commentators would stop trying to create news, and just report the facts. They do no one any worthwhile service, except themselves. This practice is a cheap way to put more words in an article. I surmise they are paid by the word. Proof is that they title articles like this to capture readers, when the facts won’t attract. Empty hyperbole, even of limited value in a classroom. A sign of a poor teacher.

  • Chris

    That UC Davis law professor is a complete quack. On what legal theory does he think the 9th Circuit could review the district court’s decision if it determines the parties bringing the appeal lack standing? The parties bringing the appeal are not the parties who were defendant’s in the case below. They were permissive intervenors. Standing is only a requirement as to plaintiffs (at the district court level), and appellants (at the appellate level).

    • His argument is, that if there was no live case or controversy due to refusal of anyone with standing to defend, then the trial must be vacated and the district court be ordered to enter a default judgment for the plaintiffs.

  • FlexSF

    V. Amar is the only legal expert saying this. Contrary to what he thinks “could” happen, Perry v. Schwarzenegger will not be thrown out.

  • Chuckles

    Do you think if a bigoted mormom judge had heard the case and ruled the opposite, it would be a biased and thus invalid conclusion?

  • MikeA

    As much as I disagree with judge Walker’s decision I find “he himself is gay” line of argument disgusting.
    Actually it’s the same line of argument he used in his ruling. His main point was: all Prop. 8 supporters are anti-gay bigots; therefore Prop. 8 is unconstitutional.

  • Seethelightofgod

    Well I for one agree with the Prop 8 lawyers, who cleverly avoided calling in any “experts”, because that would only serve to legitimize the proceeding.

    After you’ve adjusted yourself into the correct moral mindset, you come to understand that the damage this could do to straight marriage is just mind boggling.

    God doesn’t like it. Most of the people I talk to in my church don’t like it. And the people of California wisely chose to protect children from seeing any of the married gay people.

    • Ryu

      Your Religious beliefs have no baring other people’s live. Kindly back off.

    • Jeff

      So your personal religious beliefs trump a minorities civil rights? Really?

  • Alex

    Loving vs Virginia among several other cases were not class action lawsuits. To say that ALL gay couples need to sue the State of California to get Marriage rights that they are entitled to is a cry from a butt buddy of Justice Blackmun. The State refused to defend Proposition 8, the State lost its time to file an appeal. Its just like any other civil case. If I sued you and you didn’t respond to the lawsuit I would win by default because you didn’t respond to that lawsuit. To say Perry v Schwarzenegger wouldn’t apply to every gay person really doesn’t make any sense. Yet what else is new you right wingers come up with every excuse in the book to deny rights to others.

    • There are two fallacies with your post, Alex. The first fallacy is that Loving was a Supreme Court decision, and the decision binds all courts on that issue as a matter of precedent. A U.S. district court does not set binding precedent.

      The second fallacy is a default judgment, by its nature, is limited to the parties. As not all gay persons were parties in the Perry case, Perry does not apply to them.


Scott Shafer

Scott Shafer migrated to KQED in 1998 after extended stints in politics and government to host The California  Report. Now he covers those things and more as senior editor for KQED’s Politics and Government Desk. When he’s not asking questions you’ll often find him in a pool playing water polo. Find him on Twitter @scottshafer

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