Cross-posted from FindLaw.

Now that we know the identity of the three judges of the U.S. Court of Appeals for the Ninth Circuit who will hear the appeal in the case challenging Proposition 8 (California's ban on same-sex marriage), observers are trying to handicap the outcome. I too am guilty on occasion of getting caught up in the horserace aspect of litigation prediction, but in this column I explain why complex lawsuits, like racing forms, aren't for the faint of heart.

The Composition of the Ninth Circuit Panel

Guessing precisely how California's same-sex marriage legal saga will end up has been dicey business from the start; the litigations have already taken several dramatic and unexpected turns over the past five or six years. And the ideologically diverse composition of the three-judge panel in the Proposition 8 federal appeal doesn't make prognostication any the easier.

One member of the panel, Stephen Reinhardt, is by many accounts the most prominent old-school left-leaning judge on the federal bench -- a liberal lion who has served as an active member of the Ninth Circuit for over 30 years since Jimmy Carter appointed him at the end of Carter's presidency.

Another member, N. Randy Smith, was an experienced Idaho state court jurist before George Bush placed him on the federal circuit a few years ago. He has a less well-developed federal court of appeals track record, but his general background and prior decisions would seem to indicate he is instinctively quite conservative in his legal philosophy.

And the third member, Michael Daly Hawkins from Arizona, is a Clinton appointee who is considered, as are many Clinton appointees to the federal appellate bench, somewhat to the left of the national center, but generally moderate in philosophical instincts.

The Two Big Legal Questions Before the Panel of Judges

A panel comprised of a liberal, a conservative and a moderate would be hard enough to read in any big-ticket case. In the Proposition 8 dispute, things are far more complicated still.

One source of the complication is the fact that there are two substantial, distinct legal questions before the panel. The first is whether the sponsors of Proposition 8 have standing to defend the measure; if not (and if Imperial County also lacks standing), then, as I explained in my most recent column, Proposition 8 will likely die a quiet "default judgment" death in California (because neither Governor-elect Jerry Brown nor Attorney General-elect Kamala Harris will defend the measure.) But if Proposition 8 were to die this kind of quiet death, there would be no immediate legal implications beyond California's borders.

Only if the Ninth Circuit finds the sponsors have standing will it take up the merits of the constitutional challenge to Proposition 8 and decide the second question: whether there is a federal constitutional right to same-sex marriage.

On the latter question, perhaps it is reasonable to believe that "liberals" are more inclined to embrace a federal constitutional right than are "conservatives" (with "moderates" somewhere in between.) But on the standing question -- which concerns a somewhat technical doctrine about which I've written extensively here on FindLaw -- traditional ideological labels are less useful as predictive measures. This is partly because standing rules are often manipulated by judges -- both liberal and conservative -- for prudential reasons (including to pick the right time certain disputes should be resolved by the federal judiciary). And some liberals might prefer to see Proposition 8 die a quiet death than see it slain by the Ninth Circuit in a more prominent ruling on the merits, since the latter scenario is more likely to draw the generally conservative U.S. Supreme Court into the fray.

A Look at Judge Reinhardt's Likely Stance Alone Illustrates Why the Panel Holding Is Hard to Predict

But we don't even need to consider the overall makeup of the Ninth Circuit panel to see the complexity of this case and the difficulty of prediction. A look at just one of the panel members, Stephen Reinhardt, alone suffices to illustrate the intricacy of the litigation and its possible resolutions.

On the merits, Judge Reinhardt would probably agree with the challengers to Proposition 8 that the ban on same-sex marriage violates the federal Constitution. Indeed, although this fact has not yet garnered wide attention, he (along with Ninth Circuit Chief Judge Alex Kozinski, in a separate writing) has already expressed his opinion that the federal government's discriminatory treatment of same-sex couples, with respect to health-care benefits for spouses of employees in the federal judiciary, violates the Constitution.

While the Proposition 8 case raises a slightly different legal question than the health-care spousal benefits dispute raised, Judge Reinhardt is on record saying that he thinks discrimination against gays and lesbians by government is subject to so-called "heightened scrutiny," under which the government must produce a strong reason for the differential treatment. And most analysts, myself included, do not think bans on same-sex marriage can survive an honest application of heightened scrutiny.

But on the standing question, Judge Reinhardt has a personal track record that is harder to decipher. In particular, he wrote a Ninth Circuit opinion in the 1990s involving a challenge to an Arizona English-language-only initiative. That Ninth Circuit opinion conferred federal court standing on the initiative's sponsors. But it was that very opinion that was roundly criticized by a unanimous Supreme Court in language that has cast doubt on Proposition 8 sponsors' standing and that has caused the Ninth Circuit to devote so much energy to the standing question. (For much more on the standing issue, readers might want to consult this prior column and the earlier column to which it links.) Will Judge Reinhardt stick to his standing guns and hold that Proposition 8's sponsors do have standing? Or will he feel cowed by the unanimous, albeit non-binding, language from the Supreme Court in the Arizona case in 1997?

To be sure, many people describe Judge Reinhardt as somewhat defiant, but he also is the author of a well-known dissent in 1988, in Watkins v. U.S. Army, in which he said he felt constrained to follow a Supreme Court ruling even though he found it terribly wrong-headed. And it is interesting to note the context of that famous 1988 Reinhardt opinion: gay and lesbian equality rights. The case involved the Army's ban on gays and lesbians, and Judge Reinhardt dissented from a ruling by two other Ninth Circuit Judges (Judges Norris and Canby) striking that policy down. (Needless to say, the ruling by these two judges itself got undone; that is why we are still dealing with the "Don't Ask, Don't Tell" policy even today, although perhaps that policy will be rescinded soon by Congress.)

Finally, consider that the Supreme Court is thought to keep a particularly watchful eye on Judge Reinhardt (even more watchful than the eye some people think it keeps on the Ninth Circuit as a whole). His opinions have probably been reversed by the Supreme Court more times than those of any other sitting Circuit judge. That is partly because he's been around so long. But it's partly because he is reversed quite often. And he is also reversed lopsidedly quite often. In one Supreme Court year, his opinions were reversed unanimously -- that is, without a single Justice ruling in his favor -- in at least five cases, a whopping number given the rarity with which a lower court judge's rulings are even taken up by the high Court as a general matter.

So a Ninth Circuit ruling authored (or joined) by Judge Reinhardt invalidating Proposition 8 will likely catch the attention of the high Court and its law clerks all the more. (Remember, too, that the Supreme Court has already seemed to send a message that it is keeping tabs on this case when the Court unexpectedly -- and to my mind unjustifiably -- intervened a year ago, by a 5-4 vote, to stop U.S. District Judge Vaughn Walker from broadcasting the Proposition 8 trial to other federal court venues, in Hollingsworth v. Perry.)

Even if Judge Reinhardt would like to see a federal constitutional right to same-sex marriage recognized, will he think that a case in which he himself has played a large part is a good vehicle to accomplish that end right now, given the specter of Supreme Court review?

These and other questions will simply have to await the decision of the three-judge panel; its ruling will probably come down sometime during the first half of next year.

Cross-posted from an earlier column on FindLaw

On December 6, the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in the federal constitutional challenge to Proposition 8 -- California's voter-enacted ban on same-sex marriage. While the identity of the three judges to whom the appeal has been assigned won't be known until a week before the argument, the time is ripe to sketch out at least some of the possible outcomes of the Ninth Circuit proceedings.

On one hand, the Ninth Circuit might decide the merits of the constitutional challenge and affirm U.S. District Judge Walker's conclusion that Proposition 8 violates the Fourteenth Amendment because discrimination against same-sex couples in the marriage context violates their fundamental liberty rights under the U.S. Constitution's due process clause, and/or is irrational under its equal protection clause.

If that is the Ninth Circuit's final ruling (after any en banc battle that might occur in the wake of the three-judge panel decision), then the chances that the U.S. Supreme Court gets involved go up dramatically. Any broad opinion invalidating all the state bans on same-sex marriage in the Western states that fall within the Ninth Circuit would create a situation of national disuniformity that the Supreme Court would probably feel obligated to address (when asked by the Proposition 8 backers to review the case).

If, on the other hand, the Ninth Circuit reaches the merits and reverses Judge Walker, then the Supreme Court would probably not be inclined to get involved (when asked to do so by the challengers to Proposition 8).

The Ninth Circuit conceivably could reverse Judge Walker on the merits by holding that his due process and equal protection analyses were flawed. Alternatively, the Ninth Circuit might reverse Judge Walker by holding that a summary Supreme Court ruling from 1971 (Baker v. Nelson) binds lower courts to reject constitutional challenges to same-sex marriage bans, even if the Supreme Court itself might come out differently today. (For more on Baker v. Nelson, readers may want to consult my earlier column regarding this aspect of the Proposition 8 fight.)

Under either of these two possible rationales for reversing Judge Walker, I would expect the Supreme Court to stay out of the case. The Court probably has no zeal to take up the gay-marriage issue right now, and unless it is forced to do so by a ruling that creates national disuniformity, it will be happy to let things percolate in lower state and federal courts, state legislatures, and direct democracy processes.

A Key Uncertainty: Will the Ninth Circuit Even Reach the Merits of the Case?

One looming uncertainty, to which I have devoted previous columns (such as the one linked here) is whether the Ninth Circuit can or will address the merits of the constitutional challenge at all. In particular, there is a serious question whether the sponsors/drafters of Proposition 8 have "standing" in federal court to defend the initiative measure against constitutional attack.

A unanimous Supreme Court, in the 1997 ruling in Arizonans for Official English v. Arizona, seemed generally to call into question (albeit in a nonbinding part of its opinion) the standing of initiative sponsors to defend an initiative against constitutional challenge in federal court, at least when the sponsors have not been specifically deputized by the voters, and where the state's elected representatives have chosen not to defend. (Things might, and perhaps should (as I have written), be different if voters actually designate initiative sponsors as agents for litigation in the event that elected officials decline to defend; no such designation was made by the voters who enacted Proposition 8.)

The Ninth Circuit appears to be weighing the meaning of the Supreme Court's language and reasoning very carefully; it made mention of this Supreme Court case when it specifically instructed the parties in the Proposition 8 appeal to address the question of standing in their briefs and oral argument, and it issued an order earlier this week allocating one full hour -- half of the whole scheduled argument time of two hours -- to "standing and any other procedural matters that may properly be raised."

I am not sure what "other" procedural matters the court might have in mind, but devoting an hour (the usual amount of time allotted for an entire Ninth Circuit oral argument on a case, including the merits) to standing and related issues confirms the seriousness with which the Ninth Circuit appears to be taking them.

If the Proposition 8 Sponsors Lack Standing, What Happens Next?

Let's assume that the Proposition 8 sponsors are found to lack standing. What then?

For starters, the trial in Judge Walker's court and the lengthy opinion that the trial generated (striking down Proposition 8) would likely have to be vacated (that is, voided). Why? Because if the Proposition 8 sponsors lack standing within the meaning of Article III of the Constitution (which is what the Supreme Court language tends to suggest), then they were no more appropriate to be parties at the trial court than they are at the appellate level. And a trial without appropriate parties on one side should not have gone forward. Nor should the results of such a trial count for anything. (Recall that the Proposition 8 sponsors were the only defendants participating in the trial. The Attorney General and Governor did not take part, but essentially conceded that the plaintiffs were correct in their challenge.)

What if the Ninth Circuit finds -- at the same time that it concludes that the Proposition 8 sponsors lack standing -- that Imperial County (which has been trying to intervene to defend Proposition 8) should have been allowed into the case? Even then, I would think that vacating the original trial and resulting opinion would be the correct result. Perhaps a new trial -- with Imperial County now defending the initiative measure --would then be proper to conduct. But that possibility for the future doesn't alter the past: It doesn't change the fact that if the Proposition 8 sponsors were not valid parties, then the trial held last spring lacked any appropriate representative on one side of the case.

Should Imperial County Have Standing to Defend Proposition 8 in a New Trial?

As for whether Imperial County should be allowed to defend Proposition 8, I express no firm conclusion, but I have my doubts about the County's position. True, County officials -- unlike the Proposition 8 sponsors -- include elected representatives. But these county clerks are elected not by a statewide electorate. Instead, they are chosen by a local (and perhaps unrepresentative) constituency. For this reason, when issues (like marriage) arise that involve statewide legal systems and statewide policy concerns, letting counties speak on behalf of the state -- especially when executive officials who are elected statewide (like the Governor and Attorney General) disagree with the position that those counties are taking -- would seem to be problematic.

Indeed, that appeared to be one of the big reasons why the California Supreme Court held, in the early stages of California's same-sex marriage saga, that San Francisco county (led by Mayor Gavin Newsom) could not go its own way in 2004 in authorizing same-sex marriages when statewide policy (as determined by the legislature and Governor) was different. To administer statewide legal statuses like marriage, one would think that a state needs statewide officials (like Governors and Attorneys General) to be calling the shots about the enforcement, execution, and defense of the law.

An additional, related problem with recognizing Imperial County's standing arises from the large number of counties in the State. If counties are appropriate parties, and if different counties take different positions as to the meaning and validity of a state law such as Proposition 8, which counties' legal positions should the courts have to respect? To ponder this question is yet another way to see the need for a statewide official to arbitrate disputes within the state executive branch, in order to determine and promote singular, consistent executive enforcement and litigation strategies.

What If Neither Any County Nor Any Sponsor Has Standing to Defend Proposition 8? The Possibility of a Future Class Action

If Proposition 8's sponsors and Imperial County all lack standing, then what?

Presumably, the case would go back to the federal trial court in San Francisco to be processed as a "default" judgment. A default is a victory that the plaintiffs (the parties who sued) obtain when the defendants (or should I say, the appropriate defendants) decide not to defend in a lawsuit. A default judgment gives the named plaintiffs (in this instance, the same-sex couples represented by attorneys David Boies and Ted Olson) the particular relief that they seek (the marriage licenses they want). However, such a judgment would not generate an opinion on the merits that has any effect on, or meaning for, anyone else, today or in the future.

Where would such an outcome leave all the other same-sex couples in the State? It would leave them free to file their own lawsuits to obtain the same relief -- that is, to procure their own marriage licenses.

If a default is entered in the case filed by Boies and Olson a new lawsuit is brought by other same-sex couples, this new lawsuit should probably be styled as a class action, so that all same-sex couples throughout the state who want to marry would technically be the plaintiffs. (It's not clear to me why Boies and Olson did not seek class-action status in their case; perhaps they never imagined that the Attorney General and the Governor would not defend the initiative, and thus these lawyers assumed that their case would be heard on the merits in the Ninth Circuit and would generate a legal ruling that would cover all couples in the state no matter what.)

If a class action were certified, and if the Governor (who will be Jerry Brown) and the Attorney General then were to decline to defend, at that point Proposition 8 would be a dead letter in California for the foreseeable future. Granted, another Governor and Attorney General -- elected from a different point on the political spectrum -- could, down the road, try to reopen the judgment, based on a different view on whether Proposition 8 should be enforced and defended. But reopening judgments is tricky business, and is generally disfavored by courts.

One More Wild Card Regarding Proposition 8: The Result of the Still-Undecided California Attorney General Race

A final wild card: What effect might the final result in the still-unresolved Attorney General's race in California have, in the event that the Proposition 8 sponsors and Imperial County lack standing?

Republican Steve Cooley has said that he thinks Proposition 8 -- like most initiatives -- should be defended. Democrat Kamala Harris has indicated that she agrees with Attorney General Jerry Brown's decision not to defend Proposition 8. If Harris were to end up winning (and she had a lead in the count, as of yesterday), then things would be easier: Both the next Attorney General and the incoming Governor (Brown) would be on the same page.

If Cooley wins, then things are a bit more complicated. It's not clear to me that the new Attorney General could do much to change the state's litigation stance in the particular case filed by Boies and Olson (although that depends on the timing of any Ninth Circuit ruling sending the case back to the trial court, and also on technicalities of federal civil procedure governing cases on remand from the Court of Appeals back to the District Court). But Cooley, if he wins the election, would likely be in office at the time any subsequent challenges to Proposition 8 are filed by other same-sex couples.

In such an instance, if Governor Brown doesn't want to defend Proposition 8, and Attorney General Cooley does, who wins that clash? My tentative sense is that the Governor should prevail, but let us cross that tricky legal bridge only if we need to.