Proposition 8 Has Its Day In Court In The 9th Circuit

December 7, 2010 · Posted in The Capitol 

Yesterday, California’s Proposition 8, which had been declared unconstitutional by a Federal Judge over the summer, was the subject of a two hour long hearing before a three-judge panel of the 9th Circuit Court of Appeals:

SAN FRANCISCO — A federal appellate panel heard animated arguments for and against California’s ban on same-sex marriage on Monday, and seemed alternately skeptical of some of the ban’s justifications and concerned with the legal standing of its defenders.

The oral arguments were made to a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco, which is the second federal court to consider the case, which was brought last year by two gay couples who want to marry. In August, a lower district judge, Vaughn R. Walker, ruled that the ban — Proposition 8 — did indeed violate their constitutional rights to equal protection and due process, but its supporters appealed.

On Monday, proponents of Proposition 8 once again laid out the reasons they feel only men and women should be allowed to marry, including the idea that marriage is concerned with creating children and thus critical to human survival. It was the same argument they had unsuccessfully presented to Judge Walker, and two of the appellate-level judges — nominated to the court by Democratic presidents — also seemed unimpressed on Monday.

Charles Cooper, the lead lawyer for supporters of the ban, began by saying that Californians were engaged “an earnest and profound debate” about marriage before passing Proposition 8 with 52 percent of the vote in 2008.

But Judge Michael D. Hawkins, a nominee of President Bill Clinton, quickly interjected. “Could the people of California reinstitute school segregation by a public vote?” the judge asked.

Mr. Cooper said no, that that would violate the Constitution. “How is this different?” Judge Hawkins replied.

Mr. Cooper responded that Proposition 8 differed from, for example, racial restrictions on marriage because those laws — struck down by the Supreme Court in the 1960s — had no legitimate state interest. Traditional marriage did, Mr. Cooper said.

“Society has no particular interest in a platonic relationship between a man and a woman,” Mr. Cooper said, adding that marriage also combated societal problems like children being born to single parents.

“That sounds like a good argument for prohibiting divorce,” said Judge Stephen Reinhardt, an appointee of President Jimmy Carter, drawing laughs.

Theodore B. Olson, who represents the plaintiffs alongside David Boies, his onetime opponent in the legal battle over the 2000 presidential election, likened Proposition 8 to a fence built around gay men and lesbians. He said the argument that only traditional marriage bettered society was not only false, it missed the point.

“It is not society’s right,” Mr. Olson said. “This is a fundamental individual right.”

That was the second hour of the argument, though. The first hour focused on more nuanced issues of whether the parties that were arguing on behalf of the Constitutionality Proposition 8 had the legal standing to even appear in Court. One group is the coalition that put the initiative on the ballot, the other is the government of Imperial County, California, or at least part of the county government. All three of the judges seemed to have extreme problems with the idea of non-state parties being allowed to argue on behalf of the state when the Governor and Attorney General have decided not to appeal and there seemed to be at least some question of whether or not the case would be remanded to the Supreme Court of California for a ruling on whether such parties have the authority under California law to stand in when the Attorney General decides not to appeal a case.

It’s unlikely, though, that the 9th Circuit is going to let this case die on an esoteric issue like Article III standing. This case is all about the substance, and the question of whether or not a ban on same-sex matters is constitutional, and Lyle Dennison does an excellent job of summarizing those arguments:

In what the presiding judge called “a fascinating argument,” the Ninth Circuit Court on Monday took up the historic constitutional fight over California’s ban on same-sex marriage, and sent a variety of tentative and somewhat mixed signals.  But if the hints of the two-hour, 19-minute televised argument hold true in a final ruling, the Court might shunt the case temporarily off to a state court for some clarification, or it might move ahead to decide the case itself, but make it as narrow as possible.  The bottom line, though, could be that Proposition 8, one way or the other, may not survive in that Court.

If there was a surprise, it was that the one judge on the three-judge panel known as a conservative, Circuit Judge N. Randy Smith, found a possibly fatal flaw in logic in support of the ban.  What is rational, Judge Smith asked, about a state giving gay and lesbian couples complete equality in the legal rights and benefits that married couples have, including the right to raise children, but then to deny them marriage itself.  The state’s voters, he said, had just opted to omit a single word, “marriage,”  and how is that rational?  He seemed skeptical of the response by Charles Cooper, Proposition 8 lawyer, that “it is a word that is essentially the institution; you cannot separate the two.”

But, however Judge Smith might vote on the constitutionality of the ban, if the panel gets to that, it seemed clear that his two colleagues, Circuit Judges Stephen R. Reinhardt and Michael Daly Hawkins would nullify the ban, provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.  At most, they seemed inclined only to rule that California had first allowed a right to same-sex marriage, then took it away by singling out gays and lesbians for the loss of an existing right — a targeted exclusion that could only have resulted from bias.

If that’s what happens, then the impact of this case as a nationwide precedent would be far more limited than some might think since it would appear to only apply in situations where there had been a right to same-sex marriage that was then taken away. Outside of California, I’m not aware of any state in the country where that’s the case. Even then, though, the case would stand as persuasive authority to be used in another case challenging the marriage laws of other states.

It’s hard to say how long we’ll have to wait for a decision in this case. As I noted above, it’s entirely possible that the initial decision in this case will be on the technical standing issues and that the case will be sent to California’s Supreme Court for clarification on state law before the 9th Circuit rules on the merits. Nonetheless, after watching the hearings, I agree with Dennison that there does seem to be at least at 2-1 majority in favor of striking down Proposition 8 at least on a narrow basis. Whether that’s how it ends up remains to be seen.

Here’s the video of the entire oral argument, which is worth watching if you’ve got the time:

Outside the Beltway


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