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Proposition 8 supporters, opponents state their cases at televised appeals hearing

By Steven Luo December 6, 2010 No Comments Print Share

A three-judge panel of the Ninth Circuit Court of Appeals heard oral arguments in San Francisco today on the question of whether a lower court ruling that California’s voter-approved ban on gay marriage is unconstitutional should be allowed to stand.

The two-and-a-half hour hearing was televised live nationwide on C-SPAN, affording viewers a rare chance to watch the judges pressing both sides on questions such as whether Proposition 8 has any rational basis.

Charles Cooper, the attorney for Proposition 8’s proponents, argued that “if there is any rational basis for the […] traditional definition” of marriage, it must be upheld. The government has a rational interest in promoting traditional marriage because “sexual relationships between men and women naturally produce children,” and children born out of wedlock frequently require additional state support, he said.

But Presiding Judge Stephen Reinhardt did not appear convinced. “That sounds like a good argument for prohibiting divorce,” he said.

Judge N. Randy Smith asked Cooper what the point of prohibiting California same-sex couples from marrying was, since they already have “all the rights” that other couples have through domestic partnerships.

“If you redefine the word, you change the institution,” Cooper replied. It would be “quite perverse” if California’s domestic partnership law weakened its case for being able to ban same sex marriages, he said.

Meanwhile, Theodore Olson, solicitor general under former President George W. Bush, said that “California has built a fence around its gay and lesbian citizens” unconstitutionally denying them access to marriage.

Pointing to Lawrence v. Texas, a 2003 Supreme Court decision which said that same-sex sexual relationships are protected by the Constitution, and extensive precedent saying that marriage is a fundamental right, he asked how gays and lesbians could be denied a fundamental right for engaging in protected conduct.

He argued that Proposition 8 should be subject to a stricter standard of review than rational basis review, but said that even if rational basis review applied, Proposition 8 proponents “cannot come up with a reason,” going on to list some of the reasons they articulated during their campaign.

But political campaigns are always filled with “nonsense arguments,” Judge Michael Hawkins suggested, asking Olson whether Proposition 8 should survive rational basis review if someone could come up with a reason. Rational basis review requires an inquiry into the motives behind the measure, Olson replied, but he said he could not think of any rational basis for prohibiting same-sex marriage.

Smith then asked what Olson thought of same-sex marriage supporters’ argument that prohibiting same-sex marriage promotes “responsible procreation.” That argument is “flatly inconsistent with the evidence,” Olson said — but Smith questioned whether that was true when taking into account evidence that was not presented during District Judge Vaughn Walker’s trial.

San Francisco Deputy City Attorney Therese Stewart, though, pointed out “same-sex couples do procreate,” via artificial insemination and surrogate motherhood, and said the state does nothing to discourage same-sex couples from raising children. She said the only reason for prohibiting same-sex marriage while allowing same-sex domestic partnerships would be that same-sex marriage somehow “stains” the institution of marriage — a view “inexplicable by anything other than animus towards” gays and lesbians, she said.

Judges looking to issue narrow ruling?

The judges pressed both sides on why they should not rule that Proposition 8 unconstitutionally targets the rights of gays and lesbians, pointing to Romer v. Evans, a 1996 Supreme Court case where the high court ruled that a Colorado measure preventing the state from giving gays and lesbians legal protections was unconstitutional.

That course of action would strike down Proposition 8, but leave the broader question of whether banning gay marriage is inherently unconstitutional unresolved.

Cooper argued that the Colorado law was ruled unconstitutional not because it targeted gays and lesbians, but because it was overly broad and “unprecedented in our jurisprudence.” By contrast, the traditional definition of marriage is “anything but unprecedented,” he said.

But Olson urged the court to look at the larger picture. The court could choose to rule based on that “narrow ground,” but Proposition 8 “cannot be justified by any standard of constitutional analysis,” he said.

Judges question whether proponents can appeal lower court ruling

But even before the appeals court reaches the question of whether Proposition 8 is actually unconstitutional, it must decide whether Proposition 8’s backers have standing to appeal Walker’s ruling.

Outgoing Gov. Arnold Schwarzenegger and Attorney General — now Governor-elect — Jerry Brown have refused to defend Proposition 8 in court, so if the appeals court rules that Proposition 8’s backers do not have standing to appeal, it’s possible no one will be able to appeal Walker’s ruling.

Cooper argued that Karcher v. May, a 1987 case where the Supreme Court ruled that the New Jersey state supreme court had granted the president of the state senate and the speaker of the state assembly the authority to defend a law which the governor and attorney general refused to defend, shows that Proposition 8’s proponents have standing to appeal, pointing to the state supreme court decision allowing them to defend Proposition 8 in state court.

But the judges pointed out that Karcher was decided before Arizonans for Official English v. Arizona‘s expression of “grave doubts” about whether the sponsors of an Arizona ballot initiative had standing to appeal a ruling on the constitutionality of the measure. Cooper replied that Arizonans for Official English acknowledged that state law controls whether ballot initiative sponsors have the right to appeal a judgment, and said that California courts have “routinely” allowed them to appeal.

Meanwhile, David Boies, the noted trial lawyer who opposed Olson in the Bush-Gore recount case, argued that the measure’s backers have not shown the “personal, concrete, particularized injury” needed to appeal the ruling.

But the judges appeared to be troubled by the possibility that preventing Proposition 8’s sponsors from appealing would leave no one to defend the measure.

“The governor’s actions and the attorney general’s actions have essentially nullified” Proposition 8, Smith asserted — a situation that Reinhardt said “does not seem to be consistent with the initiative system.”

Reinhardt floated the possibility of taking the unusual step of asking the California Supreme Court to determine whether California law gives Proposition 8’s sponsors the right to appeal the ruling striking down the measure.

Imperial County deputy county clerk Isabel Vargas has also applied for standing to appeal the ruling, with her lawyer, Robert Tyler, arguing that “her duties will be altered as a result of the outcome of this case.”

But the judges appeared to be highly skeptical of the claim, questioning whether she, as a deputy, could act without approval from the county clerk, and whether county clerks would have standing to appeal the ruling in the first place.

Walker ruled Proposition 8 unconstitutional in August, saying that Proposition 8 violates the due process and equal protection clauses of the Constitution by denying gays and lesbians the right to marry a member of the same sex. But the Ninth Circuit stayed the ruling to allow time to consider an appeal.

Reinhardt, Hawkins, and Smith are expected to take several weeks before issuing their decision, which is highly unlikely to be the last word on the subject. The losing party is expected to appeal, either to an eleven-judge “en banc” panel of the Ninth Circuit or to the Supreme Court.

Contact Steven Luo at sluo@californiabeat.org.

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