The 9th Circuit Court of Appeals is hearing Perry v. Schwarzenegger today. Two issues are being argued; whether the sponsers of Prop 8 even have standing to appeal since the State of California (which has declined to fight this) would be in charge of enforcing the ruling, and the constitutionality of Prop 8 itself. Also at issue is whether Imperial County can intervene. The 3 judge panel hearing it is not made up of the same 3 judges that stayed Judge Walker’s ruling. Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith are hearing the appeal. C-SPAN’s showing it live.
I really, really hate standing law, and how it gets used to avoid issues. The devil in me, however, will be very amused to see it used in this way. It’ll also have the bonus of hurting the GOP, in CA in particular, as the religious right wll see it as another example of moderate Republicans refusing to advance their agenda.
I do, however, hope this isn’t decided on standing. I’d like to see the Prop 8 case destroyed on its merits, rather than prodecurally. However, I’d also purely selfishly like to see the standing issue go to the Supreme Court, as it could lead to some fun twisting in the wind for people to try to appear consistent while getting the result they sought.
So anyone care to speculate on the ruling? I think the judges were very skeptical regarding Prop 8’s sponsors claim of standing. Ditto with Imperial County. Hawkins kept questing why the Deputy Clerk was a party and not the actual elected clerk herself. I predict a 3-0 ruling denying the appeal for lack of standing which means that court will avoid having to address the constitutionality of Prop 8 itself.
Not much to add at this point other than to say it sure is interesting to hear the legal arguments on both sides. NPR was airing the proceedings live this AM.
Gotta say, Boies blows the other attorneys out of the water. Cooper is excellent, but I think he knows how weak his precedents are. Tyler (representing the Imperial County clerk?) looked like an idiot out there; I’m sure he’s a good lawyer, but I wonder if he’s argued in front of an appeals court before. Boies had an answer for everything – an answer to the question that was asked. Even Cooper has, at times, appeared to answer some other question because he didn’t like where the the real question was leading.
Are you in the courtroom?
I keep forgetting that you guys do that - our courts would have a caniption if it was suggested.
We Californians are just soooooo way out in front of everyone else. Except on SSM, where Iowa has us beat.
Aaand, back, days late, to talk about the second part – the merits. The plaintiff’s case was handled by Olson, mostly, and I wasn’t that impressed – he kept trying to turn the judges’ question back to what he wanted to say, just like Cooper, despite the fact that they were good questions with perfectly good answers. Very frustrating to watch. Cooper kept hammering on the ability to procreate as a rational basis for marriage law, which I think the one judge destroyed with his joke that “well, that seems like a good argument for prohibiting divorce…”
It was San Francisco’s City Attorney who finally made the point I was waiting for, which was that if the purpose of marriage is to encourage the rearing of children in a stable and secure family unit (which is the proponent’s argument under a rational basis test), and given that gays can have children, then banning same-sex marriage works against the purpose of marriage. I know that “rational basis” is allowed to be tenuous, even nonsensical, but surely not backwards?
I found this analysis on the web. I think it sums things up retty nicely.
Belated update. Imperial County’s appeal has been dismissed outright and the Supreme Cout of California was been asked to certify whether or not the sponsors have standing to defend a ballot proposition in court. I highly doubt they’ll decide that they do, the appeal will be dismissed, Prop 8 overturned, and marriage equality will resume in California (& only California, the ruling won’t apply to any other state). The sponsors will appeal to SCOTUS, which will decline to hear it without comment.
…And perhaps the whole process will take long enough that California voters will reverse themselves in 2012, rendering any pending litigation moot. Hopefully the rulings against DOMA make their way up the chain and are upheld (well, at least the Gill ruling; the Commonwealth of Massachusetts ruling seems like it might be a bad precedent, depending on how it’s interpreted).
Another Imperial County official is seeking leave to defent Prop 8 in court if the 9th Circuit rules the sponsers don’t have standing. He is an elected official (unlike the deputy clerk who filed the original intervention), but he missed the September (which was 6 weeks before he was elected, let alone took office) deadline for filing an appeal. I don’t think he’ll get anywhere.