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All you need to know about today’s Prop 8 hearing at the 9th Circuit

9th Circuit Court of Appeals Prop 8 trial

By Jacob Combs

Today, the 9th Circuit will hear oral arguments pertaining to two aspects of the Perry v. Brown trial that began last year.  The first hearing, at 2:30 p.m. PST, will regard the appeal of Judge Ware’s decision to release the Prop 8 recordings taken during the initial trial.  The second hearing, at 3:30 p.m. PST, regards the appeal of Judge Ware’s ruling to deny the proponents’ motion to dismiss Judge Walker’s decision because he did not disclose that he is in a long-term relationship with a man (shorter: Prop 8 backers said Judge Walker is gay so he is biased so his decision should be dismissed, Judge Ware denied their motion, Prop 8 backers appealed to the 9th Circuit). The 9th Circuit is not having any further hearings on the constitutional merits of the case itself or the issue of standing.  Reply briefs regarding the California Supreme Court’s decision to grant the proponents standing under California law were due last Friday.

Some background and links:

  • Courage Campaign Institute’s Arisha Hatch and Rick Jacobs will be liveblogging the hearings right here on Prop8TrialTracker.com, so you can check back just before 2:30 p.m. PST for coverage to start rolling in.  I know many of you in the comments also plan to be there, so if there’s a tidbit you’d like to send in (a photo of the rally on the steps of the courthouse, an observation, etc.) send it on in to adam AT couragecampaign DOT org and we’ll get it up.
  • Jennifer Roback Morse, the founder and President of the anti-gay Ruth Institute (who we encountered here while Arisha et al were following the NOM bus tour in California), will be liveblogging the trial for the National Organization for Marriage today.  If you can handle the other side’s coverage of today’s hearings, you can check out NOM’s blog or Twitter feed.
  • Many legal observers believe the 9th Circuit is likely to grant federal standing to the proponents of Prop 8 (enabling them to appeal Judge Walker’s decision) and go on to address the case on the merits.  Ted Olson and David Boies, the attorneys representing the plaintiffs in Perry on behalf of the American Foundation for Equal Rights (AFER) are confident that the 9th Circuit will rule in our favor given the excellent case presented in the district court.  It seems likely that Judge Ware’s decisions to release the tapes and the deny motion to vacate will be upheld as well.  Olson will present arguments in favor of upholding Judge Ware’s decision to release the tapes, and Boies will present arguments in favor of upholding Judge Ware’s decision to deny the motion to vacate.  Charles Cooper will argue both cases for the proponents of Prop 8.
  • Of course, that brings up the question regarding next steps.  There were a lot of interesting comments on this front in response to my piece on Tuesday about San Francisco’s brief to the appeals panel on the standing issue.  The central question, of course, is whether or not our case will get to the Supreme Court.  I agree with many of the commenters yesterday that the Supreme Court is probably not itching to take up our case.  Everything depends on the 9th Circuit’s decision.  The appeals panel could issue a narrow ruling that applied only to California or even only to the named plaintiffs in the case.  It seems unlikely they will do so, however: if a ban on marriage equality is unconstitutional under the U.S. Constitution in California, why wouldn’t it be so in Nevada?  When the case makes its way to the Supreme Court (which can of course deny to hear the case at all), the high court will have to make its own determination on the issue of standing.  It seems feasible the Supreme Court would rule the proponents do not have standing on the issue and not take up the case, possibly limiting the effect of the ruling to California.  Of course, a ruling at the Supreme Court affirming full federal marriage equality is our goal, but any outcome that upholds marriage equality even in a single state is a victory.
  • Meanwhile, on the preview side of things, many questions have come in on how long it would take for the 9th Circuit to turn around a decision in Perry v. Brown after today’s opinion is issued, and the timeline from there. Lyle at SCOTUSBlog has a thought on the timeline for the case:

Although both sides in the historic lawsuit over the gay marriage ban have expected their dispute ultimately to reach the Supreme Court, it now seems quite unlikely that the case will move fast enough in federal court from here on to reach the Justices in time for a decision during the current Term.  A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term, which is likely to end late next June.  The Circuit Court is considering the Proposition 8 case on an expedited basis, but it is doubtful that it could act quickly enough, and that preliminary filings in the Supreme Court could be made soon enough, for the case to be ready within the next two and a half months.

  • Over at the New Yorker, Jeffrey Toobin lists same-sex marriage in California as one of the top five legal stories in 2012.  He predicts Prop 8 will be struck down, noting that marriage equality in New York and California will mean one-sixth of the U.S. lives in a state that allows for same-sex marriage.
  • Elsewhere, Ari Ezra Waldman has an interesting meta piece at Towleroad on the implications of the Perry case overall.
  • We’ll see you later today when the hearings happen.

65 Comments

  • 1. Str8Grandmother  |  December 8, 2011 at 7:36 am

    It is FINALLY Thursday!!!

  • 2. _BK_  |  December 8, 2011 at 8:09 am

    Can't wait!

    A quick question, though. Can we gauge the opinions of the three judges on the court by the comments they make? I know the official ruling won't likely come until January, but… I wonder if we could somehow "feel things out." Any thoughts?

  • 3. Bob Barnes  |  December 8, 2011 at 8:19 am

    Please keep in mind that NOM's marriage expert, Jennifer Morse (Dr. J) has a Ph.D in economics and her real-world life experiences has been extensively as an economics teacher.

    But lucky for NOM she has a heavy, religious-based OPINION on marriage, cause that's what really counts.

  • 4. Wilbur  |  December 8, 2011 at 8:21 am

    It's VERY tricky to try to "read" justices by their questions, because they play Devil's advocate at times and will sometimes rigorously question a party they agree with to elicit a response they want a colleague they've been arguing with to hear. And at other times what seems like a set of friendly softball questions is actually a trap.

    That's not to say you can't get an impression, or that impression won't be right. But being surprised when the opinion comes out that you "got" a justice you were sure was against you, or vice versa, is a very common experience.

  • 5. grod  |  December 8, 2011 at 8:26 am

    Does Ms Stewart (San Francisco ) have any opportunity to be hear at today's hearings. Articulate, agile, a succinct, fast thinker on her feet [as observed last December ].

  • 6. MightyAcorn  |  December 8, 2011 at 8:32 am

    Oh boy, here we go! It's so exciting after having been in a holding pattern for so long. All I want for Christmas is MARRIAGE EQUALITY BACK!! C'MON, SANTA!!!! CIVIL RIGHTS ME, BABY!!!

    PS @ Cooper: hey batter batter batter batter………..

  • 7. Kate  |  December 8, 2011 at 8:34 am

    OK friends; this is off topic. But while we're all waiting for 2:30, take a look at my new polar bear photo book online. (Click on my name, above.) Some of you know that we went to Hudson Bay in October to photograph these magnificent creatures, and it was even better than I had hoped. Enjoy the results of our trip! (And feel free to add comments there; I'd love to hear from you.)

  • 8. James Sweet  |  December 8, 2011 at 8:58 am

    Oh man, I didn't realize they were so late in the day. Probably won't be able to follow it live. Ah well.

  • 9. Mark  |  December 8, 2011 at 9:08 am

    I was a little upset that KRON was not going to stream it live. I was all ready to set up the DVR to capture it. Instead they are showing a re-run of 30 Rock. Why did they apply to have the rights to show it? To prevent it from being shown at all? Does anyone know when they intend to show it? We should send e-mails to KRON and voice our opinions. I intend to do so.

  • 10. Sagesse  |  December 8, 2011 at 9:15 am

    I will be driving home during the court session… rats. Please take good notes :).

  • 11. Mark  |  December 8, 2011 at 9:20 am

    Here is the e-mail I sent to KRON (4listens@kron4.com):

    I understand that KRON has the rights to show the Prop 8 Trial that is being heard at 2:30 PM on Thursday, December 8, 2011. However, in looking over your program listings, I do not see it on the schedule. Please inform me when you intend to show this historic trial.

    Thank you.

    Mark King
    Dublin, California

    I will post any reply I get from the station, but I encourage others to send e-mails as well.

  • 12. johnfromco  |  December 8, 2011 at 9:45 am

    While I'm excited that things are moving again, I know it's going to be a while (way too long) before we hear the decision from these judges. What's the chance that a decision favoring the good guys (say, that California's initiative was unconstitutional in California) would be stayed pending an appeal to the Supreme Court? I don't know that I could bear to see justice delayed again after waiting for this court's decision.

    I'm glad we have the facts and law both on our side, and our excellent lawyers will demonstrate – again – how the law can be used for good. But, darn it, we're talking about denying people rights on the basis of sexual orientation and/or gender identity. This wrong should have been righted years ago.

  • 13. Str8Grandmother  |  December 8, 2011 at 9:57 am

    I think so. each side gets I think 30 minutes (don't quite me on the exact minutes) and the Judges left it up to Olson & Boies to divide up their time between them and SF. I am pretty sure I am right about this. I hope we hear form the formidable Ms. Stewart. I think the press gets their own time and minutes.

  • 14. Bob  |  December 8, 2011 at 10:05 am

    my thoughts and feelings exactly,,,,,,, finally,,,, Hillary's amazing seach, was my birthday gift the other day,,,,, fianlly in my liffetime I hear confirmation, acceptance , of my existance as part of humanaity,, and acknowledgement and request for our contirbution to life,,, those words resonaate deeply in the core of my being, with longing to making the world a better place,,,,

    Today, I wait with everyone in anticipation of unwrapping that gift , a verdict on Prop 8

    No matter what,, we must always go back to Hillary's words,,, whenever we are discouraged,,, those words point us towards a brighter future,,,,,, waiting,,,,,

  • 15. Str8Grandmother  |  December 8, 2011 at 10:08 am

    Thumbs UP for your initiative Mark. Great idea!

  • 16. AnonyGrl  |  December 8, 2011 at 10:12 am

    I will be out this evening, while exciting things are happening on the West Coast, and tomorrow will be in the hospital for a test (not to worry, but it will keep me out of here all day). So let me be the first to say "YAY! WE WON!"

    (Adam, if the ridiculous happens and we DON'T win, please remove this post and I will replace it when I check in on Saturday.)

  • 17. AnonyGrl  |  December 8, 2011 at 10:13 am

    It seems likely that additional stays will be granted, pending appeal. That has been the pattern. It sucks, but there it is.

  • 18. torque  |  December 8, 2011 at 10:16 am

    Planning to be there at least for the rally. Maybe I'll meet some of you! :)

  • 19. Gregory in SLC  |  December 8, 2011 at 10:27 am

    Happy Birthday Bob : D ! what day?

  • 20. DaveP  |  December 8, 2011 at 10:31 am

    I just emailed Kathleen. I'll be arriving at the courthouse around 1PM, maybe a little later. See you guys there!

  • 21. dwpiper  |  December 8, 2011 at 10:32 am

    While we wait, I wanted to share this:

    [youtube _hXbvihiKmw&feature=colike http://www.youtube.com/watch?v=_hXbvihiKmw&feature=colike youtube]

  • 22. DaveP  |  December 8, 2011 at 10:32 am

    hey hey hey, no 'firtsies'! : )

  • 23. DaveP  |  December 8, 2011 at 10:47 am

    We'd love to meet another P8TTer in person! In case you can't spot the P8TTers, I'll be wearing a blue polo-style shirt (or a black military-style sweater if it's cold). Say 'hi'!

    And if at all possible, I highly recommend staying to get a seat in the court house for the hearings at 2:30. It's a front row seat to history in the making.

  • 24. Wilbur  |  December 8, 2011 at 10:57 am

    If (when!) equality wins in the Circuit – which may only be weeks – a stay pending NOM's appeal to the USSC is a virtual certainty. But think of it as the 7-inning stretch in a shutout game you're winning. Victory will come, but it comes slowly.

  • 25. torque  |  December 8, 2011 at 11:03 am

    Unfortunately, now is a bit of a crucial time for my work project, so I don't think I can stay. But as a fairly recent San Fran transplant, I'm looking forward to being in attendance whenever I can! I actually work on Howard & 2nd, so it's pretty close.

  • 26. Gregory in SLC  |  December 8, 2011 at 11:08 am

    What a lovely tribute to these vanishing "magnificent creatures"! Glad to see the "surprised fox" (p.114) made the cut. I love the myriad of expressions on the p.b. faces! (p. 42 "what are you looking at!?") –thank you for sharing! p.s. I count your Tanzania! book as one of my favorite things : )

  • 27. Gregory in SLC  |  December 8, 2011 at 11:22 am

    I enjoyed the video. I was unclear if featured a real couple or not. I always prefer actual people like @ the top of p8tt (and I think adds credibility) , credits from AAH8: http://www.aah8.org/credits.html
    Actors:
    Daughter – Dawn Alden
    Father – Bryant Gordon
    Groom – Thaine Allison
    Pastor – Ron Christensen

  • 28. Carpool Cookie  |  December 8, 2011 at 11:22 am

    Is she the lady that really needs a makeover? I think I saw her looking like death in one youtube video.

  • 29. Bob  |  December 8, 2011 at 11:38 am

    thinking of you,,,, p.s. pass the test,,,,,

  • 30. Bryce  |  December 8, 2011 at 11:59 am

    Ok. So we know that there will likely be no live airing of the proceedings. And we know that the Court is to post it by noon tomorrow. But do we know, given the media permission to record the proceedings, when, where, or how the other outlets (CSPAN, KRON, etc) will make their recordings available?

  • 31. chris from CO  |  December 8, 2011 at 11:59 am

    Just to make sure im correct, I am undertanding this will NOT be live anywhere is that right.

  • 32. bjasonecf  |  December 8, 2011 at 12:06 pm

    I called KRON about this but they haven't called me back.

    A KQED spokesperson told me that they will not be broadcasting but it is possible (I hear from a little birdie) that they might.

    I, too, will post any updates I get.

  • 33. bjasonecf  |  December 8, 2011 at 12:06 pm

    I am SSOO jealous of all of you!

    Have fun and take care!

  • 34. bjasonecf  |  December 8, 2011 at 12:10 pm

    So far, I can't find anything that points to live broadcasting (audio or video) but if I do, I'll let everyone know.

  • 35. Stefan  |  December 8, 2011 at 12:24 pm

    "The appeals panel could issue a narrow ruling that applied only to California or even only to the named plaintiffs in the case. It seems unlikely they will do so, however: if a ban on marriage equality is unconstitutional under the U.S. Constitution in California, why wouldn’t it be so in Nevada?"

    Actually it's very likely it will be a narrow ruling. California was a unique situation in that same sex marriage was legal, but was then repealed. This was implied last December when the 9th Circut heard arguments regarding the merits of the case.

  • 36. bjasonecf  |  December 8, 2011 at 12:35 pm

    yes, AnonyGrl. Pass the test! Thinking of you.

  • 37. Alan_Eckert  |  December 8, 2011 at 12:47 pm

    Following closely so I can hopefully watch this with my mom this evening!

  • 38. Jacob Combs  |  December 8, 2011 at 12:52 pm

    Hi all,

    Just wanted to post a quick update about watching the proceedings live. KRON-4 will not be televising them, which is a disappointment. Props to Mark for emailing them about it–I plan to do the same, and if you feel like, you should, too (4listens@kron4.com)!

    However, KQED will be streaming the hearings live on their website, KQEDnews.org. There's a box that says "news fix" and there should be a link there sometime before 2:30 that you can follow. KQED won't be broadcasting on the radio or TV.

    And of course we'll have lots of coverage here at P8TT!

  • 39. James Sweet  |  December 8, 2011 at 1:09 pm

    OT, here's a thoughtful blog post about whether proponents of an initiative have a right to appeal a decision striking down that initiative. Spoiler: The author eventually concludes that they do, though rest assured the author of this post is in no way shape or form an ally of the Prop 8 proponents, let me tell ya… He also gives some predictions about where things go from here. An interesting read, all things considered.

    (As to my own opinion, I don't know if I think proponents of an initiative should be allowed to appeal… I have major issues with the very concept of voter initiatives on a state-wide level, especially when the state constitution can be amended with a simple majority — as a result it is difficult for me to analyze what I feel is already a broken system.)

  • 40. bjasonecf  |  December 8, 2011 at 1:09 pm

    Thanks for the update, Jacob!

  • 41. JonT  |  December 8, 2011 at 1:15 pm

    Neat, that's where I'll be :) Thanks!

  • 42. Str8Grandmother  |  December 8, 2011 at 1:20 pm

    Happy Birthday Bob!! That was one heck of a Birthday present for sure.

  • 43. Kate  |  December 8, 2011 at 1:22 pm

    Gregory, you are such a dear! Thank you so much.

  • 44. AnonyGrl  |  December 8, 2011 at 1:25 pm

    She is the one who thinks she is "cool" and can "relate" to the younger people. It is quite ridiculous watching her attempting to do so.

  • 45. Str8Grandmother  |  December 8, 2011 at 1:26 pm

    I am going to get on early and listen to dead air. Other times it has happened to me when something is streamed live the server gets full and you can't connect. So like everything in life I guess, arrive early.

  • 46. Str8Grandmother  |  December 8, 2011 at 1:28 pm

    Jacob, how about an update on the on the rally/protest has that started yet? What does it look like outside the court house right now? Paint us a picture.

  • 47. AnonyGrl  |  December 8, 2011 at 1:32 pm

    Awww… c'mon, haven't I been around here long enough to earn a "first!" :)

    I'll supply cookies. And MILK. :)

  • 48. AnonyGrl  |  December 8, 2011 at 1:33 pm

    Thanks, guys! I'll be thinking of you too, while I lie there waiting for them to poke at me. :)

  • 49. Str8Grandmother  |  December 8, 2011 at 1:38 pm

    Jacob, I went to KQED's website and went to the link and when you click on the box to connect (looks like starting a video type box) it says that they are live blogging it so it does not appear to me that it will be live streamed over the web, only live blogged.

  • 50. Theresa  |  December 8, 2011 at 1:42 pm

    Have a question. If the 9th circuit rules in our favor, can that ruling be stayed indefinitely until the Supreme Court hears it?

  • 51. Wilbur  |  December 8, 2011 at 1:47 pm

    That seems quite possible though I'm not sure about "likely." . Its unique factual circumstance – a hate vote to repeal recently won rights – puts it uniquely and squarely within Romer and opens the way to a very narrow ruling that strikes the proposition as an unconstitutional, animus-based state action which lacks any legitimate secular rational basis …. while skirting the issue whether a fundamental civil right to marriage equality exists. It is THEORETICALLY possible to stack the constitutional toothpicks that way. But that's not what Judge Walker ruled, and I'm pretty confident they will review and rule upon the ruling and record before them. I saw no indication that plaintiffs sought such a narrow victory at last year's arguments on the merits, though I do vaguely recall one justice's questions flirting with ways to rule very narrowly.

  • 52. Alan_Eckert  |  December 8, 2011 at 1:51 pm

    "We will broadcast the proceedings live right here at 2:30 p.m., and KQED's Scott Shafer will be tweeting live as well."

    You should be able to stream the audio still.

  • 53. Str8Grandmother  |  December 8, 2011 at 1:54 pm

    AFER is on twitter posting pics http://ow.ly/i/n3cq http://twitter.com/AFER http://twitter.com/#!/search?q=%23Prop8

  • 54. Str8Grandmother  |  December 8, 2011 at 1:56 pm

    Our plaintiffs getting ready to go to court they are at AFER http://ow.ly/i/n39d

  • 55. Ed in Lafayette  |  December 8, 2011 at 1:57 pm

    I ran across this……
    http://www.prop8case.com/ee.php/blog_archive/nom_

    Now, if I were to describe Rob Reiner, I would say…..the person who directed "The Princess Bride", or "When Harry met Sally". Or even as "the actor who played "Meathead" on All in the Family".
    Instead, NOM refers to him as……and this is a direct cut and paste from their site….

    Rob Reiner (formerly known as "Meathead") should be making an appearance today, as he is one of the principle financiers of the lawsuit against voters in California. We'll keep you updated.

    Yeah, real respectful, eh?

  • 56. Prop 8 Trial Tracker &raq&hellip  |  December 8, 2011 at 2:01 pm

    […] he’s gay. For all you need to know on today’s hearing, check out Jacob Combs’ preview piece from this […]

  • 57. Jamie  |  December 8, 2011 at 2:02 pm

    I've just read through Arizonans for Official English again, and I'm less and less convinced that the Supreme Court will grant standing. In Arizonan, the Supreme Court points to the fact that there isn't "resentational or associational standing" due to lack of concrete injury AND anything in the Arizona Constitution that would support standing for citizens or initiative proponents. I think it's clear that both are required, not just one.

    While I appreciate the California Supreme Court opinion, it didn't actually answers the question that the Supreme Court posed in Arisonans. The CA justices could point to nothing in the California Constitution or previous case law that supports standing for initiative proponents. They said the citizens of California will be ill served by denying the proponents standing. I can see why the California Supreme Court ruled the way they did, they were trying to protect what they saw as the interests and intent of California voters and our initiative process and felt extending standing to the proponents was the best way to do it.

    I think the Supreme Court is going to say "tough cookie, the people of California need to get their act together because they are being ill served by what their Constitution says." I also have serious doubts that the Supreme Court is anxious to allow any Tom, Dick or Harry to start running arguments up the federal court's food chain and being put in the position that San Francisco points out of untangling real arguments from fictional ones.

    I think the 9th Circuit is itching to rule on the merits, so they will, but I highly doubt that the Supreme Court will uphold the standing issue on appeal.

  • 58. johnfromco  |  December 8, 2011 at 2:02 pm

    Now how am I supposed to get any work done today?! :)

  • 59. torque  |  December 8, 2011 at 2:15 pm

    Didn't see you, but I also didn't have my glasses on. Maybe next time! :)

  • 60. Prop 8 Live! Listen Now H&hellip  |  December 8, 2011 at 2:31 pm

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