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.]
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."