Legal Commentary

In my upper-level elective courses (Federal Courts and Civil Rights), 15 % of the final grade is based on an appellate argument. Each student argues a recent court of appeals decision to the "Supreme Court" (a panel of myself and 2-3 classmates). I have done this three times and the students tend to get into the project. Many students (especially the public-law geeks who tend to take Fed Courts) like the chance to play judge and appellate advocate and I think they (or at least some of them) see it as a nice change-of-pace from the typical end-of-semester issue-spotting hypothetical essay exam.

On two occasions, I have used Smelt v. Orange County, a 2006 decision where the Ninth Circuit abstained under Pullman from a constitutional challenge to California's ban on same-sex marriage. The court abstained in deference to a state constitutional challenge to the ban that at the point was working its way through the state courts. The California Supreme Court actually heard oral arguments on the state case yesterday, which is what reminded me of this. Dale Carpenter offers thoughts on the argument at the VC.

My initial reaction to the case was that the Ninth Circuit was correct in abstaining. But this year, the student arguing for reversal nailed the key issue that undermines the Ninth Circuit's decision, although without fully fleshing it out. Pullman abstention is proper when a challenged state law is ambiguous and a state-court interpretation and construction might eliminate the constitutional defect in the law. Pullman is grounded in policies of avoiding unnecessary constitutional rulings and seeking sub-constitutional grounds for resolving cases. But the state law must be ambiguous and must be reasonably capable of some construction that would avoid the constitutional problem; if the law is clear and unambiguous, abstention is improper and the federal court should go ahead and resolve the constitutional challenge.

But, the student pointed out in the argument, California's marriage laws are not ambiguous--they are perfectly clear in prohibiting two men or two women from marrying each other. And this caused me to re-examine the decision in Smelt and to conclude that the Ninth Circuit was wrong. The court's three-part test asked only whether a state-law issue could resolve the litigation; it did not say anything about the nature of the state-law issue or the need for ambiguity. The pending state-court litigation to which the court deferred was not going to construe the state laws or interpret around the possible constitutional defects; it was going to decide the constitutionality of these unambiguous laws, but under the state constitution. But the court said that was enough for abstention. In other words, the Ninth Circuit used Pullman to privilege state constitutional litigation over federal constitutional litigation. That flies in the face of the view that abstention should be the exception to the Court's "unflagging obligation" to take jurisdiction.

Ultimately, Smelt passes into history without notice. The time for seeking cert is long passed. And, since the state-court case was pending when the federal case was filed, there may have been other bases for the court to abstain. And the California Supreme Court will resolve the issue on state constitutional grounds, one way or another.

But it is great when students can call out the courts for sloppy doctrinal work. And it is even better when they can help us to identify that sloppiness. That is a teaching moment.