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Ninth Circuit Court of Appeals Hears Argument in Historic Civil Rights Case

Pro Bono Highlights

Firm Newsletter Spring 2011

David Boies Outside the Ninth Circuit Courthouse

Eyes turned to the Ninth Circuit U.S. Court of Appeals on December 6, 2010, as arguments were made before a three-judge panel in Perry v. Schwarzenegger, the landmark civil rights case brought by BSF Chairman David Boies and his one-time courtroom adversary, former solicitor general Ted Olson.

The case arrived in the Ninth Circuit after the Plaintiffs achieved a resounding victory in the district court. 

In August, Chief Judge Vaughn Walker of the Northern District of California held that Proposition 8, which stripped gays and lesbians of the right to marry, violated the federal constitutional guarantees of equal protection and due process.  The ruling, which spanned 136 pages and included 80 separate findings of fact, followed a twelve-day trial in which Boies subjected experts called by the Proponents of Proposition 8 to devastating cross-examination.  In its opinion, the district court found that the Proponents’ experts lacked credibility and that their opinions were entitled to little or no weight.  The court’s ruling was a complete vindication of the Plaintiffs’ claims, concluding that “Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

The Ninth Circuit agreed to expedite the appeal, ordering the completion of briefing within only a few months.  The court set aside two hours for the argument on December 6, and granted the requests of numerous media organizations to televise the proceedings; they can be viewed in full via the BSF website [].  Boies took to the podium during the first hour of the hearing, arguing that there is no party with standing to pursue the appeal.  The Governor and the Attorney General elected not to appeal Chief Judge Walker’s ruling, and Boies explained why neither the Proponents, who defended the measure at trial, nor Imperial County, which unsuccessfully moved to intervene in the district court, could pursue an appeal in the absence of the State defendants.

On January 4, 2011, the Ninth Circuit held that Imperial County had no standing to pursue the appeal, and also issued an order certifying a question to the California Supreme Court to help it resolve whether the Proponents possess standing.  The Ninth Circuit asked the state high court to address whether initiative proponents possess either a “particularized interest,” or the authority to represent the state’s interest, in the initiative’s validity.  The California Supreme Court agreed to accept the certified question from the Ninth Circuit, and has ordered briefing to be completed within a few months.

Once the California Supreme Court issues an opinion answering the certified question, the case will return to the Ninth Circuit for further proceedings.  If the state high court answers the certified question in the negative, the Ninth Circuit appears inclined to find that Proponents lack standing and dismiss the appeal (leaving Chief Judge Walker’s ruling in place).  If the California Supreme Court answers the certified question in the affirmative, the Ninth Circuit is more likely to find that Proponents have standing, and it would then proceed to issue an opinion on the merits of the appeal.

In  addition to Boies, the BSF team on the case includes partners Jeremy Goldman and Steven Holtzman, counsel Rosanne Baxter, associates Rick Bettan, Meredith Dearborn, Randall EwingDarien Meyer, Beko Reblitz-Richardson, Jarrod Reich, Josh Schiller, Theodore Uno, and case manager Jason Lipton.

For continued media coverage of this case, please click here.


Related Lawyers: David Boies, , Steven C. Holtzman, Rosanne C. Baxter, , Meredith R. Dearborn, , , Beko O. Reblitz-Richardson, , Joshua Irwin Schiller, Theodore H. Uno

Related Practices: Constitutional Law and First Amendment / Mass Media, Pro Bono