Prop. 8 Appeal: Now It's Up to the Judges

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KQED's Scott Shafer was at the U.S. Court of Appeals in San Francisco to cover today's Proposition 8 arguments. I asked him for his 15-word impression. "Momentous. Historic. I couldn't help but think of Brown v. Board of Education"--the 1954 U.S. Supreme Court decision that found segregation of public schools to be unconstitutional. He added that he thought all three judges on the Prop. 8 panel—Stephen Reinhardt, Michael Hawkins, and N. Randy Smith—were tough on all the lawyers who appeared to marshal arguments for and against U.S. District Court Judge Vaughn Walker's August ruling (138-page PDF) that struck down Prop. 8.

From the live blogger's chair, the sense of history in the making was a little muted—though it was clear that the attention the case drew is extraordinary.

The judges' toughness—that was obvious. The most painful 15 minutes of the two hours-plus of arguments played out when attorney Robert Tyler faced the judges. He appeared in the first hour, devoted to whether the parties appealing Walker's decision have any legal standing to do so. Specifically, Tyler was charged with telling the panel why Imperial County had a right to intervene in the case. He had barely begun before Judge Michael Hawkins demanded, "Why don't you start by telling us where Dolores Provencio is." Provencio is the Imperial County clerk, but Tyler didn't represent her. Instead, he represented Isabel Vargas, a deputy clerk. The gist of the judges' grilling was that Ms. Vargas had no place in the case whatsoever. That was bad enough for Tyler. But an incidental exchange with the increasingly irritated Hawkins was worse:

Hawkins: Is the clerk in Imperial County elected or appointed?
Tyler: Your honor, the clerk, as, as I recall ...
Hawkins: You don't know the ...
Tyler: She is appointed. She is appointed, your honor.
Hawkins: By whom?
Tyler: She's appointed by the Board of Supervisors ...

Hawkins later excoriated Tyler for not admitting he didn't know the answer to some of the questions the judges fired at him. But the lawyer's ordeal wasn't over. Near the end of his interrogation, he announced he'd been informed that the Imperial County clerk is elected.

***
Did Schwarzenegger and Brown throw in the towel? Judge N. Randy Smith pressed David Boies, one of the attorneys for the lower-court plaintiffs against Prop. 8, on whether Governor Schwarzenegger and Attorney General Jerry Brown have undermined the initiative by refusing to defend it.

Smith: It's my understanding that these particular initiatives [sic] could not have been vetoed by the governor. Correct?
Boies: Yes, sir.
Smith: It's also my understanding that the Legislature could not even amend them unless approved again by the voters.
Boies: That is correct, your honor.
Smith: So if that's so, I guess my problem is that the governor's actions and the attorney general's actions have essentially nullified the considerable efforts that were made on behalf of the initiative to be placed on the ballot and obtain passage.
Boies: Your honor, I would disagree with you for the following reason ...
Smith: If they don't appeal and therefore no one can appeal, haven't they effectively nullified the effect?
Boies: Only, only in the sense, your honor, that in every standing case if a state official does not appeal it quote nullifies it. For example ...
Judge Stephen Reinhardt: The answer then is yes to Judge Smith's ..
Smith: ... The honest answer to that is yes, because what we have here then is an attorney general and a governor with no ability to nullify acts of the people, and then by just not appealing, they in fact do it.
Boies: What they do, your honor, and I think the distinction is important, is that they do not appeal a federal district court decision after a trial finding it is unconstitutional. That's exactly the same thing that happened in Diamond against Charles ...
Smith: Well, I guess my worry is that by suggesting they won't appeal, are they really suggesting they're not willing to enforce the initiative?
Boies: No you're honor, because ...
Smith: Why? What do I go to?
Boies: ... Because they are enforcing it right now.
Smith: Well, you're suggesting that they're doing what they need to at the present, but they in fact says [sic] I give up, I don't care, it's over, I'm not going to enforce. ...
Reinhardt: ... So they didn't defend, and what Judge Smith said to you, where the governor is not supposed to have a veto, the people are supposed to be able to elect, to pass a proposition, unless it's unconstitutional, no officials will defend the initiative—that does not seem to be consistent with the initiative system, where the people are allowed to pass a measure, and if the state doesn't defend it, it's tossing in the towel.

Reinhardt suggested that the court may ask the California Supreme Court for guidance on whether ProtectMarriage.com has standing to appeal Walker's ruling.

***

How important is that whole exchange? Here's a take from Brian Leubitz, publisher of the Calitics blog, and contributing to the Courage Campaign's Prop 8 Trial Tracker:

In the questioning of David Boies, Judge Smith (the lone Republican appointee on the panel), asked him whether the failure to defend Prop 8 was a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders. Of course, a veto of an initiative is not allowed under the Constitution. So, conflict? (Here’s where I’m hearing an ominous duh-duh-duh in my head.)

Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the “Pacific Justice Institute” exactly that question. PJI was first denied by the the 3rd District, and later by the California Supreme Court.

There is a process for appellate courts to ask state courts a question about state law, called certification. Basically, they “certify” a question, and the state supreme court can answer it. It would delay the process substantially, and given the quick dismissal of the PJI attempt to get Brown to appeal, doesn’t really seem either necessary or worthwhile. Essentially, the state supreme court has spoken on this issue by failing to force the appeal.

However, if the panel really felt strongly on this subject, they could go to the State Supreme Court. We would probably hear about that fairly soon. But, really, don’t expect that.

***

Another good bit from Leubitz on a key exchange during the second half of the hearing, which focused on the merits of Judge Walker's findings regarding the Fourteenth Amendment claims raised in Perry v. Schwarzenegger.

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass? And roughly transcribed, here’s what [Charles] Cooper [attorney for Prop. 8 proponents] said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.

***

Theodore Olson, representing the plaintiffs trying to overturn Prop. 8, also took note of "the word." He started his argument with a bang, saying "this court should focus on the fundamental fact that California has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter."

Olson stressed that that the character of Proposition 8 went beyond simply prohibiting same-sex marriage because it reversed a right established by the state Supreme Court in 2008. (For you California initiative history fans, he cited a case from the 1960s, Reitman v. Mulkey, in which the state high court--affirmed by the U.S. Supreme Court--struck down a state initiative that encouraged discrimination in housing sales.

Judge N. Randy Smith suggested the state might indeed have a rational basis for observing a distinction between opposite-sex and same-sex couples—a suggestion Olson rejected. The judge persisted, leading Olson to seize on Cooper's "the word is the institution" argument:

Smith: Now just sit the question—the idea of distinguishing marriages from domestic partnerships in name only, to promote it as a vehicle for procreation, all else being equal, children likely to thrive when raised by father and mother who brought them into this world—that it is irrational?

Olson: Yes. In the first place, Mr. Cooper specifically said just a few moments ago 'the name is the institution.' Those are his words virtually verbatim. The name is the institution, and the witnesses at this trial, the witnesses that came forward and were willing to be cross-examined and were willing to testify under oath, not the law review articles and so forth that were put forth by the proponents, but the witnesses that came forward in this case, and the plaintiffs and other witnesses in this case talked about what marriage meant to them and what it means in this society as an institution. Not just what the [California] Supreme Court said, but we had what the plaintiffs said, what the experts said, what the Supreme Court said, and what the district court found. And there's nothing that would suggest that children would thrive in a better way in that environment. In fact, the proponents' expert, Mr. Blankenhorn, testified that the children in those relationships [same-sex households] would be better off, that we would be a better country, that we would be closer to the American ideal, if same-sex marriage were permitted.

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About Dan Brekke

Dan Brekke has worked in media ever since Nixon's first term, when newspapers were still using hot type. He had moved on to online news by the time Bill Clinton met Monica Lewinsky. He's been at KQED since 2007, is an enthusiastic practitioner of radio and online journalism and will talk to you about absolutely anything.

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