A.G. to Court: Allow Gay Marriages Now

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Attorney General Kamala Harris is asking the 9th U.S. Circuit Court of Appeals to lift the stay on Judge Vaughn Walker's decision striking down Prop. 8 last year. In unusually emotional language for a state's "top cop," Harris's court filing reads, in part:  "For 846 days Proposition 8 has denied equality under law to gay and lesbian couples. Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied. The preconditions for a stay are lacking on this record. The stay should be vacated."

  Her request follows that of the legal team representing two same-sex couples in the Prop. 8 case (Perry v. Schwarzenegger) and comes on the heals of President Obama's Justice Department declaring the Defense of Marriage Act (DOMA) unconstitutional. It's also a personal issue for A.G. Harris: Her brother-in-law Tony West is married to her sister Maya and is Assistant A.G. for Civil Rights at the U.S. DOJ.

   As for chances of success in dropping the stay? Don't bet on it. The 9th Circuit is treading carefully on this one --as evidenced by asking the California Supreme Court to weigh in on a central question of legal standing. Prop. 8 backers would appeal lifting of the stay to the U.S. Supreme Court in a New York minute. The Supremes practically make a hobby out of reversing the Ninth ... so it's unlikely the 9th Circuit panel of judges hearing the Prop. 8 appeal will test them on this. Besides -- if the stay is lifted, more couples get married and Prop. 8 is ultimately upheld, those couples would then be "unmarried" again. Talk about emotional roller coasters!


Prop 8 Opponents to Court: Hurry Up!

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    In some ways the Defense of Marriage Act (DOMA) is the biggest federal barrier to equality for gay and lesbian Americans. It prevents same sex couples who get married in states where it's legal from getting federal rights bestowed on other married couples. Like tax breaks and Social Security benefits when a spouse dies.

    So when Attorney General Eric Holder announced that the Obama Administration would no longer defend DOMA, civil rights advocates cheered. Some in the LGBT, notably Geoff Kors of Equality California, have been seering in their criticism of what they say saw as Obama's hypocrisy after promising to be a "fierce advocate" for gay rights in his 2008 campaign.

    Less than two hours after that announcement attorneys opposing Prop. 8 were on a conference call with reporters. Conservative Republican-turned gay rights champion Ted Olson hailing the administration's decision -- and deftly blending it into court filings with the 9th Circuit Court of Appeals.

   Olson's team wants the 9th Circuit to lift its stay of federal Judge Vaughn Walker's decision striking down Prop. 8 as unconstitutional. That motion was already in play when Wednesday's blockbuster announcement came from the AG. The reason: Olson et al say justice delayed is justice denied -- and that Prop. 8 brands same sex couples in California as "different, inferior and unequal" forcing them to wear a "badge of inferiority".

    But legal experts like David Levine of UC Hastings Law School and Katherine Darmer of Chapman Law School in Orange County (who by the way supports same sex marriage) strongly doubt the Appeals Court will lift the stay. Why? Because while the political landscape changes swiftly, courts are more deliberate and cautious -- even the notoriously liberal 9th Circuit. The last thing they want is for the Supreme Court to step in again and slap them down.

   But Olson and his partner David Boies are also asking the state Supreme Court to hurry up its schedule for deciding whether California law allows Prop. 8 backers to defend the measure in court since neither the Governor nor the State Attorney General will. As it now stands oral arguments in that legal detour won't beheld before September.


A Legal Leg to Stand On?

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   The California Supreme Court voted 7-0 Wednesday to answer a question put to them by the federal court considering the constitutionality of Prop. 8: "Does state law give the official proponents of an initiative the legal authority to defend the measure's constitutionality when public officials charged with that duty refuse to do so?"

   Their answer -- which could come as early as this fall -- will be pivotal in the ultimate outcome of the Prop. 8 legal tussle. The question of "legal standing" was first raised by the three-judge panel of the Ninth Circuit Court of Appeals in San Francisco during oral arguments last year. The judges seemed genuinely puzzled by the question, so they turned to the California Supreme Court for help answering it.

   In agreeing to take up the question Wednesday, the court put the question on a legal fast track. The opening brief on the merits is due March 14th. Oral arguments in the matter could come as early as September -- lightening fast by Supreme Court standards.

   Their answer is consequential either way. If the court decides ballot measure proponents LACK legal standing, the Appeals Court will then have little choice but to dismiss the appeal before them. It would mean the lower court ruling declaring Prop. 8 unconstitutional stands, opening the door once again to same sex marriages in California. It would also reduce the likelihood that this case will reach the U.S. Supreme Court, where it would meet a very uncertain fate.

  On the other hand if the justices say proponents DO have legal standing, the Appeals Court judges would then be free to consider questions about Prop. 8 on the legal merits. They could issue a sweeping decision requiring all states in the Ninth Circuit to allow same sex marriage. Or they could issue a much narrower decision that would apply only to California.

   In oral arguments last year two of the federal judges focused on the fact that Prop. 8 eliminated a right that existed before the election -- suggesting that might be more "legally egregious" than simply reinforcing the status quo by preventing it in a state where it wasn't already legal. A ruling along those lines would be considered "narrow" and perhaps more likely to withstand scrutiny by the U.S. Supreme Court, where it will probably go next.

   Meanwhile in Sacramento Wednesday, state Sen. Tom Harman (R-Orange County) introduced legislation that would require California's attorney general to defend in court all voter-approved ballot measures -- something Jerry Brown refused to do when he was A.G.

   Speaking of Jerry Brown, the governor should announce a nomination for the State Supreme Court any day now. Justice Carlos Moreno announced he's retiring at the end of February. His replacement will hear the Prop. 8 case and take part in the decision.


All for one and one for all

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Tuesday's unanimous federal Appeals Court order asking the State Supreme Court for clarification on the question of legal standing accomplishes several things. First, it delays by months, perhaps years, a final legal decision on the Prop. 8 question at the U.S. Supreme Court. Time is generally on the side of gay rights supporters, as public attitudes continue, as the Prez and VP say, "evolving."

   It also keeps the three justices -- Reinhardt, Hawkins and Smith -- on the same page. In the end, a 3-0 ruling will have a bigger impact than a 2-1 decision where Judge Smith (the only one of the three appointed by a Republican President) is in dissent.

    Of course, today's 3-0 decisions on standing don't consider the legal merits of the case. That won't come until the State Supreme Court gets back to the judges. In the meantime, they're all reading from the same page.


Appeals Court Punts to Buy Time

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   The panel of three federal judges considering the merits of Prop. 8 issued a flurry of orders Tuesday, including one that could delay for some time resolution of the fundamental constitutional questions. It all centers around the issue of legal standing -- who has it and who doesn't.

   After District Court Judge Vaughn Walker struck down Prop. 8, Then-Governor Schwarzenegger and then-Attorney General Jerry Brown declined to defend the measure by filing an appeal.

    Protect Marriage.com, the proponents of Prop 8, stepped in and appealed the ruling, saying someone had to represent the people. Imperial County also sought to intervene -- they were denied legal standing by the lower court and today the 9th Circuit Court of Appeals affirmed that decision -- agreeing that Imperial County lacked legal standing.

   But on the question of standing for Protect Marriage.com, the judges asked the State Supreme Court for guidance. "We respectfully ask the Supreme Court of California to exercise its discretion to accept and decide" the question of whether proponents of a measure have a "particularized interest" in the initiative's validity "or authority to assert the State's interest...when public officials charged with that duty refuse to do so."

    Keep in mind, this is not the same State Supreme Court that wrote the decisions first legalizing same sex marriage, then upholding Prop. 8. Chief Justice Ronald George, who wrote both decisions, has retired ... and just yesterday Tani Cantil-Sakauye was sworn in as the new Chief.

   One thing is certain: California's ban on same-sex marriage will remain in effect until all the legal issues are resolved, probably by the U.S. Supreme Court,  or until voters pass another ballot measure legalizing same sex marriage in California once again.


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.


Proposition 8 Appeals Hearing: Live Blog

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Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments about the voter-approved ban on same-sex marriage. A trial court judge overturned the measure as a violation of gay Californians' civil rights in August. (Eric Risberg/AP)

12:45 p.m.: Cooper closes with one last reminder that Colorado Amendment 2, struck down by Romer (1996) is fundamentally different from Proposition 8. Amendment 2 was much more sweeping. The hearing is adjourned.

12:44 p.m.: Cooper: Loving fundamentally different from Baker v. Nelson, a Minnesota Supreme Court decision (1971) that ruled against gay marriage. "If it had been the case that same sex relationships produce children the same way that opposite-sex relationships do," Cooper says, then it would be appropriate to equate the two cases.

12:40 p.m.: Cooper responds to Olson, Stewart arguments. Says citation of Loving is off-base: If Mr. Loving had been trying to marry a man instead of a woman in 1967, the case would have gone differently.

12:37 p.m.: Stewart: Only real rationale for excluding same-sex couples is that they bring "a stain" to the institution of marriage. Argues, as plaintiffs have done throughout the case, that the Yes on 8 campaign was based on bias, on demeaning gay people, on portraying gay couples "as a lifestyle that should be kept in private."

12:35 p.m.: Stewart says the "procreation" argument for exclusive opposite-sex marriage doesn't hold water. Same-sex couples procreate too—just not the old-fashioned way.

12:33 p.m.: Now up: Therese Stewart of the San Francisco City Attorney's office, an intervenor on the side of same-sex marriage supporters.

12:32 p.m.: Olson finishes: Proposition 8 discriminates on the basis of immutable personal characteristics. It fails every level of Fourteenth Amendment scrutiny. That's the conclusion I'd like to see from this court.

12:30 p.m.: "Straight people and gay people are different. But that doesn't mean you can classify them, as Justice Kennedy said in Romer, and then exclude them from this part of society."

12:27 p.m.: @eqca
Smith: Would difference in name only btwn civil unions & marriage be unconstitutional? Olson: Yes; the name is the institution. [He quotes Cooper on this point.]

12:24: @FedcourtJunkie:
NR SMith casts aspersion on record created by Walker ... @loyolalawblog
Smith is getting aggressive with Olson -- DP/marriage distinction serves rational interest in procreation? ... @Chris_Stoll
Olson attacking the idea that keeping same-sex couples from marrying could affect procreation or marriage by heterosexual couples.

12:20 p.m.: Judge Smith: Do the arguments for a rational basis—that state has interest in promoting marriage as an institution as a means of promoting procreation and giving children a stable environment—do those arguments provide a rational basis for Prop. 8? Or are those arguments irrational. Olson: They're irrational.

12:20 p.m.: Judge Hawkins: Asks Olson about "rational basis": What does he say to argument that if it can be conceived that there's a rational basis for Proposition 8, that's enough to uphold it. Olson argues that a higher standard of review is necessary because gays and lesbians are category subject to systematic discrimination.

12:12: p.m.: Olson: "How can Californians take away a right that has been granted. That right cannot be taken away from individuals in this state—it's discrimination on the basis of sex, it's discrimination on the basis of sexual orientation."

12:08 p.m.: Olson cites Griswold, Loving, and Lawrence cases--all touching on rights of marriage, privacy or sexual identity. Also Romer and Reitman, touching on whether popular initiatives can infringe on equal protection rights.

12:04 p.m. Olson: "What is required under the United States Constitution is the fundamental right of people to marry." The right to marry is an aspect of the right to liberty, association, privacy, identity.

12:02 p.m. Theodore Olson is up now, for the original plaintiffs: "It's important to focus on the fact California has engraved discrimination" in the state Constitution.

11:56 a.m.: Judge Smith: I'm trying to find the rational basis in your particular argument. ...Maybe it's to market marriage between a man and a woman? Maybe it's to say that's a special relationship." Cooper: It's to preserve the institution of marriage as it's always been practiced.

11:52 a.m.: Cooper: "Any time a state goes beyond what the federal Constitution demands, then the people are free ... to return to the standard prevailing generally throughout the United States." That means that people would be free to take away rights granted by the Supreme Court. Reinhardt: Well, if that's the case, "how's that different from Romer?" Cooper: Romer went far beyond simply repealing rights always granted; it also prohibited future grant of rights.

11:50 a.m.: Reinhardt: Taking away rights is different from not giving them.

11:47 a.m.: Reinhardt and others are focusing on the state Supreme Court decision that recognized that marriage is a fundamental right and granted it to same-sex couples. Prop. 8 in effect took away those rights. Cooper says Prop. 8 should stand because the voters disagreed that the state Constitution should be interpreted that way.

11:42 a.m.: Cooper is arguing that the vote on Prop. 8, the vote of the people, ought to prevail over the previous California Supreme Court ruling that legalized same-sex marriage. Judge Reinhardt takes issue with that: You can't pass just any amendment. As Hawkins pointed out, voters couldn't institute segregated schools." Cooper responds that the school decision couldn't happen because federal courts have already outlawed such discrimination.

11:41 a.m.: @FedCourtJunkie: Whoa, NR Smith sounding very Vaughn Walker like: if ssex couples have all other rights as hetero, wht is rational basis for ban ssex weds?

11:37 a.m. Cooper agrees Amendment 2 went too far. But he says Proposition 8 is different. LGBT people were made "strangers to the law" by the Colorado initiative. But marriage, as enshrined in the California Constitution by Prop. 8, has been in place since "time immemorial." That being the case, courts can't say that the classification between opposite-sex and same-sex couple is invidious discrimination.

11:33 a.m.: Judge Hawkins now focuses on Romer v. Evans, a key piece of the argument against Prop. 8. It's a 1996 Supreme Court decision that struck down Colorado's Amendment 2, a voter initiative that prohibited any government agency, including the state courts, from granting gays, lesbians, and bisexuals recognition as a legally protected class. The court overturned, saying the state had no rational basis to discriminating against LGBT citizens.

11:30 a.m.: Cooper focuses on the state's interests in maintaining stable families and ensuring the legitimacy of children. Judge Reinhardt rejoins: "That sounds like a good argument for prohibiting divorce." (Laughter.)

11:28 a.m.: Cooper tacks toward a rational-basis argument: What are the characteristics of opposite-sex couples that the state has an interest in protecting? His argument is that the court needs to find there's not a single rational argument for marriage, as practiced since time immemorial, for the court to dismiss Prop. 8.

11:26 a.m.: They're back on. Cooper leads off for the appellants, ProtectMarriage.com. He could almost be reading from his appeal brief. Judge Michael Hawkins cuts in after Cooper says that the voters of California should have the power to decide the same-sex marriage question. Hawkins asks whether the voters have the right to institute segregated schools. Cooper says no, but is hard-pressed to say (yet) how the same-sex case is different.

11:21 a.m.: Still waiting for the panel to begin second half of hearing. If you're really dedicated to wallowing in the details of the case, here's the link for the 9th Circuit's case page: http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000472.

11:09 a.m.: And that's half-time. The panel is taking a brief recess. The next hour will focus on the merits of the case--the original plaintiff's Fourteenth Amendment claims and the defendant's basic assertion that Prop. 8 serves a legitimate state interest—preserving the traditional family.

11:04 a.m.: Charles Cooper responds to Boies argument. He argues that there's ample federal precedent for the Prop. 8 proponents to stand as appellants in the case. And he urges the panel to consider asking the California Supreme Court for its opinion regarding whether the Prop. 8 proponents have standing to appeal. He says that's the least that's due the seven million Californians who voted to enshrine heterosexual marriage in the state Constitution.

11:01 a.m.: Boies closes with an argument that the the Prop. 8 proponents who have appeared in the case lack the "concrete, personalized, particular injury" to have standing in the case.

10:58 a.m. Judge Reinhardt expresses mild incredulity that Boies sought only an order that would affect two counties. "A lawyer with your ability and fame, and whatever else you have ... even if you lost to Mr. Olson [in the Bush v. Gore case that decided the 2000 election]." That line gets a big laugh -- not the first Reinhardt has elicited.

10:53 a.m.: Reinhardt suggests that Boies is arguing that Walker's injunction overturning Prop. 8 applies only in Alameda and Los Angeles counties and that he is depending on state courts following the federal ruling in striking down the law everywhere in the state.

10:50 a.m.: @Chris_Stoll: Reinhardt: Why shouldn't we ask the Cal. Supreme Court whether initiative proponents have a legal right under Cal. law to defend ... Boies says we already know there's no standing because Cal. Supreme Court said so in Marriage Cases.

10:48 a.m.: FedcourtJunkie : Hawkins points out that scotus already tackled this nullification issue. Seems like Hawkins is angling for a narrow standing ruling here

10:45 a.m.: Boies tries to bring back the discussion to standing. Whether or not state officials defend Prop. 8, that fact does not create standing for the initiative proponents.

10:43 a.m.: Now Judge Reinhardt joins in, asking whether governor is in effect vetoing Proposition 8 by not defending it in the federal court case.

10:40 a.m.: First pointed questioning of Boies: Judge N. Randy Smith wants to know whether state officials— the governor and attorney general— are acting to nullify Prop. 8 by declining to defend it.

10:39 a.m.: From @eqca:
NOM staffers sitting in courtroom w/Prop. 8 author Andy Pugno, who our volunteers helped defeat 4 State Assembly: http://ow.ly/3kKtY

10:35 a.m.: Prop8Case blog has this observation of the courtroom before arguments started:

9:30 AM Dec 6, 2010 -- We all got in and are settled. Our little group is in the front of the courtroom, on the side for Proponents (meaning Proponents of Prop 8.) It is kind of like a wedding: bride’s family on one side, groom’s family on the other. Come to think of it, maybe that’s not the best comparison. Hummm.

10:30 a.m.: David Boies is next up. He goes to work trying to dismantle the claim from the Imperial County deputy clerk that she has standing to appeal Judge Vaughn R. Walker's decision that threw out Prop. 8.

10:28 a.m.: This is the stuff of a lawyer's bad dreams. In front of a demanding court. On TV before maybe millions of people. And he is forced to admit: "I've just been handed a note--the clerk is elected." A few minutes ago, he said the clerk was appointed.

10:24 a.m.: The person who's the focus of the grilling that Tyler's getting now is Isabel Vargas, the deputy county clerk of Imperial County. She's come forward to intervene in the case. The judges continue to be brutally skeptical of her standing in the case. Judge Stephen Reinhardt reproves Tyler for not admitting he doesn't know the answer to a series of hypotheticals concerning the responsibilities of the deputy clerk. Judge Michael Hawkins says, "We're left completely at mystery as to why the clerk [instead of the deputy clerk] is before us."

10:15 a.m.: Judge Michael Hawkins asks Tyler whether the Imperial County clerk is an elected or appointed position. Tyler hesitates, then says, "I believe ..." Hawkins cuts him off: "You don't know?"

10:13 a.m.: Cooper's presentation arguing that ProtectMarriage.com has standing in the appeal does not appear to have gone well for him. Now it's Robert Tyler's turn— he's the attorney for Imperial County. The panel pounces on him and denies demands to know where the named plaintiff from Imperial County is. This is not pretty.

10:11 a.m.: @loyolalawblog Judge [N. Randy] Smith has now weighed in on standing as well, suggesting that #Prop8 proponents should have tried to force the [state attorney general] to defend the law.

10:10 a.m.: From Tweet stream: @eqca (Equality California): Pro-Prop. 8 attorney Cooper argues his clients have standing to challenge #Prop8 - but has no federal cases to cite as precedent.@Chris_Stoll: Hawkins: What's your best case supporting standing for initiative proponents? Cooper: I don't have one.

10:03 a.m.: In a nutshell, the issues in the hearing are these: The first hour is to be used for arguments on whether the parties who defended Prop. 8 in the federal court hearing earlier this year have any legal standing to do so. The second hour will be taken up with arguments on the merits of the case. The plaintiffs, a gay couple and a lesbian couple, want Proposition 8 overturned because they say it denies their due process and equal protection rights under the Fourteenth Amendment of the U.S. Constitution. The defendants argue that the state and its voters have a legitimate interest in promoting heterosexual marriage--procreation and family stability.

10:01 a.m.: Extraordinary moment: How many federal appeals courts hearings have you seen/heard carried live in your lifetime? I'm willing to bet the total in my case (more than half a century of excellence) is zero. But Charles Cooper, attorney for the proponents of Proposition 8, is starting his argument now to the three-judge panel in a marble-walled courtroom in San Francisco's old Court of Appeals building.

9:50 a.m.: And let the games begin. Dan Levine, @FedCourtJunkie on Twitter and a courts reporter for Reuters, checks in from the 9th Circuit Courtroom: "Ted Olson, David Boies [attorneys for same-sex marriage proponents] and Chuck Cooper [attorney for Prop. 8 proponents] all have their #prop8 game faces on. Boies is definitely the most rumpled of the three."


Proposition 8 in the 9th: Pre-Hearing Edition

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Today's the day the 9th U.S. Circuit Court of Appeals in San Francisco hears an appeal of last August's federal court decision overturning California's ban on same-sex marriage, Proposition 8. Here are a few readings to get us up to speed on the issues and what to expect today:

Prop 8 Argument Day FAQ (Metro Weekly, Washington, D.C.)

On Tap Monday in San Fran (and on TV!): The Prop 8 Arguments
(Wall Street Journal Law Blog)
We Have Some Questions of Our Own (National Organization for Marriage)
Prop 8 Argument Day Guide (Ace of Spades HQ)
California's Proposition 8 Appeal (SCOTUSBlog)
Will a Technicality Save Gay Marriage (Huffington Post)
Proposition 8 Lawsuit: Unintended Legal Consequences (KQED News Fix)


Prop. 8 Appeal Hearings Live on KQED Radio and KQED.org

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Beginning at 10am PST tomorrow (Monday, December 6) we’ll be presenting special, live coverage of the oral arguments before the Ninth Circuit U.S. Court of Appeals.

If you're in the Bay Area, tune in to KQED 88.5 for live, anchored coverage with legal experts and KQED News correspondents, including Scott Shafer, at the courthouse. You can also listen online to our livestream and follow along with our live blog, right here, where we'll be providing analysis on the hearing as it’s happening.

Links to Coverage Online:

KQED and The California Report's live radio coverage

Live blog of the hearings

Watch live video at PBS.org



Interview With Kris Perry

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Scott Shafer interviewed Kristin Perry, the only eponymous plaintiff in Perry v. Schwarzenegger.  Perry discussed what it's been like for her and her family, what she feels is at stake in the case, and what the reaction of people has been to her prominent role in the lawsuit.

Listen to the interview here.