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
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;  VRW PROTECTMARRIAGE.COM-YES ON 8, A 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; 

568 PERRY v. SCHWARZENEGGER
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, No. 10-16751 Defendants,

D.C. No. DENNIS HOLLINGSWORTH; GAIL J. 3:09-cv-02292- KNIGHT; MARTIN F. GUTIERREZ;

MARK A. JANSSON;

VRW

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

PERRY v. SCHWARZENEGGER 569
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 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 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-theCourt Debate, WALL STREET J. LAW BLOG (Dec. 7, 2010); Lisa Leff, Televised 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. 

570 PERRY v. SCHWARZENEGGER
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, 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

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

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). 

PERRY v. SCHWARZENEGGER 571
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 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

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.”). 

572 PERRY v. SCHWARZENEGGER
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 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

PERRY v. SCHWARZENEGGER 573
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.

574 PERRY v. SCHWARZENEGGER