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Flash 9th Circuit Hearing Analysis: Standing, Romer, and the Word

9th Circuit Court of Appeals Prop 8 trial Trial analysis

Thanks to P8TT legal analyst and Calitics publisher Brian Leubitz for chiming in his legal analysis as the trial proceeded during today’s liveblog thread, and for sharing with us his longer take here.

By Brian Leubitz

As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker’s bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil’s advocate. Sometimes you can get a read, and sometimes you can’t.  Also, I haven’t really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.

So let’s take a look at the meat of the issues, and see what we learned today.

Imperial County

The attorney for Imperial County, and Isabel Vargas, the deputy clerk of the county, took a real beating in the courtroom. Robert Tyler, of the Advocates for Faith and Freedom, a right wing anti-equality non-profit, came to the podium in front of a skeptical panel.

First, the court had an issue with the fact that the actual clerk of Imperial County was not a party to the attempt to intervene. Rather, Mr. Tyler represented Ms. Vargas, who only really has authority to act as an agent of her elected boss, Dolores Provencio. Erwin Chemerinksy, the Dean of UC-Irvine’s new law school, had this to say about the oral arguments:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state — only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene. (LA Times)

Of course, the question of Imperial County really only becomes important if the Court decides that the proponents do not have standing. But the Imperial County claim looks like something of a long shot at this point, or at least not something you would want to be pinning your hopes on.

Standing of the Proponents

This is where some unexpected wrinkles came up in the oral arguments. Namely the possibility of the “certification” of a question to the Supreme Court of California. But let’s back up a step.

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.

Returning to the main issue, the ball game was essentially played on the field of Arizonans for Official English, with various cases modifying it. The court was essentially trying to figure out if there a) had ever been a case where a proponent was deemed to have standing and b) if this should be that first case.

Charles Cooper, the attorney for, eventually relented that there was not such a case. However, he then went on to say that the Strauss decision, where the state Supreme Court upheld Prop 8, was an example of just that in the state court. There, Brown and Schwarzenegger once again refused to defend, but the proponents had standing as defined by the California Supreme Court.

Now, Article III standing isn’t the same thing as California standing, there is different jurisprudence on that. However, the admission that there was no case makes the proponents request a question of novel law. Now, that’s not to say that they can’t win on this question, but it does underscore the big question mark on this issue.

The Substance

After all the process of the first hour (plus 15 minutes), it was on to the meat and potatoes of the due process and equal protection claims. One interesting initial point was that both sides seemingly dropped the question of intermediate or strict scrutiny. Ted Olson briefly mentioned that he think that it could apply, but the substance of his remarks all stuck to the question of whether there was a “rational basis” for Prop 8.

I think there were a couple of specific points that attracted most of the attention, the Romer case, and this question of the “word”.

The “Word”

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 Cooper 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.


Romer v Evans struck down Colorado’s Amendment 2, which barred local governments from recognizing gays and lesbians as a protected class, as the City of Denver had done earlier in the decade. In the decision, Justice Kennedy said that the law denied LGBT Coloradans the protection of the law in an impermissible way. It was so broad as to “confound” judicial review and that Amendment 2 was raised of animus. Or as Kennedy put it:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected…

Cooper argued that the legislation at issue in Romer was so broad that it couldn’t be constitutional, whereas this was just one issue, the word “marriage.” Judge Hawkins pressed Cooper, saying that the removal of rights, especially this right, put it back in the Romer territory. This issue of the removal of rights looks likely to come up in the decision, if the court does reach past the question of standing.  The question just seems too large, and too conflicting with prior law, to not be a major part of the decision.  And generally, that’s a good thing for equality.

Who wins?

So, can we predict a winner from the argument today? Well, I go back to my initial statement, it is hard to tell from an oral argument alone. If you really pushed me, I would say that the plaintiffs would be the favorite at this point. The duel questions of standing and whether the court could really find a rational basis hang in the air. And I’m not sure that Cooper satisfactorily answered either.


  • 1. Ronnie  |  December 6, 2010 at 9:27 am

    Cooper wins the "Um" Award….. XP ……Ronnie:

  • 2. JPM  |  December 6, 2010 at 9:27 am

    Could someone explain what about Crawford is relevant to this case.

    And there seem to be many decisions with Crawford in the title. Does anyone have a link to the decision (or an explanation) of the decision that is relevant to the Prop 8 case?


  • 3. Kathleen  |  December 6, 2010 at 1:53 pm

    The case is Crawford v. Board of Educ., (1982)

    Cooper cited it for the proposition that there is no Constitutional prohibition against removing a right that goes beyond what the Constitution requires. He's arguing that because there is no right to marriage to a person of the same sex in the U.S. Constitution, there is nothing unconstitutional about California having extended the right and then later removing it.

    He cites the case in Proponents' reply brief, beginning pdf pg 85

  • 4. JPM  |  December 7, 2010 at 2:04 am


  • 5. Kate  |  December 6, 2010 at 9:28 am

    This whole thing about "The Word" (that is, marriage) — by extension is Cooper implying that only the English version counts? After all, in any other language The Word is something else …. not "marriage." I think I'm being sarcastic, but I'm not certain…..

  • 6. nightshayde  |  December 6, 2010 at 9:29 am

    One of my favorite parts of what I heard today (I could listen but not watch) was when one of the judges asked Cooper a question in regards to Romer — something to the effect of "it's not OK to take away a bunch of rights, but it's OK to take away just one right?"

    It struck me that Cooper was trying REALLY HARD to not acknowledge that Prop 8 took away an existing right.

  • 7. Kate  |  December 6, 2010 at 9:31 am

    Nightshayde — I'm still trying to find a way to donate to your silk flower project. I hope you see my inquiry this time, as you seem to be online right now………..

  • 8. nightshayde  |  December 6, 2010 at 9:38 am

    I saw it before (and responded) — and I am touched that you want to help out. Thank you so much!

    I honestly haven't done anything on a grand scale quite yet. I think I spent somewhere in the vicinity of $100 — no big thing at all.

    I will think about broadening the scope of my little project — and if I do decide to go big enough that I would want financial help, I'll check out the PayPal thing & post the info here. I've pondered asking Michael's (since that's the store where I got the flowers) if they would be interested in donating flowers for the project. I have no idea how they as a company feel about the marriage equality issue. If I do wind up asking them, I'll do it well after the holidays when they're not being begged for donations for other things.

    My Mom & some of my friends have also volunteered to help with any aspect of putting the bouquets together.

  • 9. Kate  |  December 6, 2010 at 9:51 am

    Oh heck, I didn't see the response and now don't know where to look for it! I guess, though, you've repeated it here. I'd really like to send a few bucks. It would make me feel as though I'm helping do something for those couples when I can't really do anything directly the way you are. Post your e-mail (or send it to my dog's FB account, Chaco Bauer), and I'll pitch in. Terrific idea about asking Michael's! Think of all those gay interior designer customers they must have…..

  • 10. nightshayde  |  December 6, 2010 at 9:59 am

    If nothing else, you could take the idea and run with it in your area. You just need silk flowers (pick whichever ones are on sale or strike you as "must have"), wirecutters (so you can trim the stems to the same size — or so you can take a pre-existing "stem" of a number of branches of flowers & cut off pieces … some single stems gave me 7 or 8 worthy sprigs a piece), floral tape, satin ribbon, and some little pushpins (very little so they don't poke through to the other side of the gathered stem).

    You get the flowers trimmed to the length you want, wrap the stems tightly together with floral tape (making the "handle" for the bouquet), and then cover the sticky floral tape with satin ribbon.

    I cut the flowers a day or two after I bought them — but once they were cut to size, I was able to assemble 28 bouquets in an afternoon at work (well – minus the satin ribbon part which I still haven't gotten around to doing).

    Ooooh – you just gave me an idea, Kate!! Both my Mom & my husband have been asking me what I want for Christmas. Maybe I'll ask them for more silk flowers. I don't think there's other "stuff" I really need right now — and I think something I can get the pleasure out of crafting & then give away to others is a perfect Christmas idea.

  • 11. Kate  |  December 6, 2010 at 10:07 am

    I love the craft lesson and wish I could put it to good use! But I'm probably the only gay in this entire rural, remote county, and I don't even want to get married. Hopefully other folks will use your instructions and run with the idea in their urban counties. Wish I could take part! There won't be any ss marriages here for many years, I'm afraid, unless I import some volunteers from other counties.

  • 12. takemusu  |  December 6, 2010 at 11:51 am

    Isn't Michael's owned by the Koch brothers, who are the billionaire founders and patrons of the Tea Party?

  • 13. Elizabeth Oakes  |  December 6, 2010 at 3:30 pm

    Are they? I won't shop there again, then.

  • 14. nightshayde  |  December 7, 2010 at 2:36 am

    If so, you have just made me a very sad panda.

  • 15. Richard A. Jernigan  |  December 7, 2010 at 3:11 am

    No, the Koch Brothers are not involved. Bain Group and Blackstone Marketing. Just looked it up a few minutes ago. I think the Kochs may have interest in Hobby Lobby, though. Especially considering how invasive some of the questions on their employment application are.

  • 16. Lora  |  December 6, 2010 at 9:45 am

    I loved how Olson started with the title of Prop. 8 in the voters pamphlet: California proposition 8 "eliminates the RIGHTS of same sex couples to marry."

    How much clearer does it have to be???

  • 17. Travis O'Brien  |  December 6, 2010 at 9:55 am

    He really was! I was amazed at how far he went to deny that. To avoid admitting that there was a right that was taken away, he did the mental gymnastics trick of trying to claim that CA voters constitute a tribunal, so that the effect of the CA supreme court ruling was delayed until that 'tribunal' (aka the election) concluded. And so he concluded that there was no right in the interim, since the judicial process hadn't concluded. If that is the case, then he is implying that through the initiative system, CA voters are simultaneously part of the legislative -and- judicial branches of CA??? I don't know a lot about law beyond what I learned in high school (and what I'm learning through what I read on this site), but that seems like an insane idea to me.

  • 18. Ann S.  |  December 6, 2010 at 12:50 pm

    Travis, I think you're right, it's an insane idea.

  • 19. Tracy  |  December 7, 2010 at 1:31 am

    Well, it means that the legislative branch makes the law, the executive branch enforces the law, the judicial branch interprets the law, and the people are the check and balance group for the entire system. In other words, the government is nothing more than a puppet organization serving our autocratic whims.

  • 20. James Tuttle  |  December 6, 2010 at 9:29 am

    Hopefully we will find out soon!

  • 21. Bennett  |  December 6, 2010 at 9:37 am

    If the right to marry is so fundamental that inmates serving life sentences can marry (the symbolism is OK there I guess, one man and one woman right?) then does it follow that inmates in the same prision, male or female, could marry another inmate of the same sex in the same facility if and when same sex marriage becomes legal? Just thought of this from reading the "prisoners can marry" reference above and having watched MSNBC "lock up" last night. Ah, the plot thickens.

  • 22. Anonygrl  |  December 6, 2010 at 11:57 am

    I suppose so… and if so, why not?

  • 23. Carpool Cookie  |  December 6, 2010 at 2:49 pm

    I believe the original case was brought by a pair of male and female prisoners. Wikipedia would know. It hinged on something to do with being allowed to get correspondence from a spouse…it's the case with "Red" in the name. Not "Redhook", but something else.

    No…(and I can't believe I remember this)…it's Zabloki (sp?) vs. Redhale (sp?)

  • 24. Henry Juhala  |  December 13, 2010 at 11:45 am

    The original case had to do with a felon in Missouri. The core of the issue I believe surrounded procreation. By Missouri law a felon behind bars could not have conjugal visits and thus could theorectically not procreate. Because they could not procreate they were banned from getting married. The Supreme Court said that marriage was such a basic and fundamental right that even a felon, who could be banned from voting, could not be restricted from marrying the person of their choice. In the same manner a marriage could not be restricted by income, disability, age, racial makeup, etc. Boies and Olson would then take that one step further and say marriage is such a basic and fundamental right that it also cannot be restricted by whom one is designed to love.

  • 25. Lodi Gal  |  December 6, 2010 at 9:40 am

    When are the judges expected to rule?

  • 26. MJFargo  |  December 6, 2010 at 9:58 am

    Since the 9th put this on "expedited" scheduling, they are aware that it is a pressing issue in many peoples' lives. So I think they want to get their decision out quickly. I've heard from 30 days to…a year. There is no deadline for them to rule. And an appeal will surely follow by whichever side loses, putting this well into 2011(or more) before it's final.

  • 27. CaliGirl  |  December 6, 2010 at 12:17 pm

    Hope it's sooner, rather than later… *crosses fingers*

  • 28. Carpool Cookie  |  December 6, 2010 at 2:52 pm

    It would be so funny if the decision was issued tomorrow : o

    Not that it will….but NOM would have kittens.

  • 29. Elizabeth Oakes  |  December 6, 2010 at 3:32 pm

    And cows.

  • 30. Joel  |  December 7, 2010 at 1:20 am

    NOM wouldn't spawn anything so cute. Lizards, maybe, or duck-billed platypuses.

  • 31. nightshayde  |  December 7, 2010 at 2:37 am

    Awww – I think duck-billed platypi are adorable. Some lizards are darn cute, too.

  • 32. Elizabeth Oakes  |  December 7, 2010 at 4:05 pm

    Bilge rats, then.

  • 33. Travis O'Brien  |  December 6, 2010 at 9:47 am

    I thought that Ted Olson did address the question of scrutiny fairly strongly. He made a several minute diversion from answering one of the judge's questions about rational basis to make the point that the evidence in the trial points to the immutability of homosexuality and the need for heightened scrutiny. Of course, I'm not sure whether that had any influence on the judges, since the none of them asked any further questions about it.

  • 34. MJFargo  |  December 6, 2010 at 9:49 am

    Thanks, Brian Leubitz. I thought this was a very fair summary of what happened today.

  • 35. atty79  |  December 6, 2010 at 9:49 am

    Great summary! Watching the arguments today, I almost couldn't stay focused. Cooper's arguments were tired, and Imperial County's were laughable. (My head figuratively shook when I heard the judges question about certification and the whole idea of comparing a failure to appeal to the use of a veto pen…wtf?)

    I did find some of the oral arguments entertaining. One sticks out in my mind–a few minutes into Cooper's arguments, Judge Reinhardt says something to the effect of…well those are good arguments to prohibit divorce, now how do they apply to this case.

    The best thing to come out of this case, I thought, was the simplification of the principle, I believe Olsen brought it up, that Prop 8 runs afoul of privacy. Our right to privacy in the bedroom is fundamental (Lawrence). Prop 8 basically demarcates marriage based on how the couples in the marriage would have sex in the privacy of that marriage. (According to Prop 8, straight sex–good, marriage okay. Gay sex–bad, marriage not okay.)

    Once that was said, it made me think–wouldn't it be funny if a fictitious Prop 99 prohibited marriage to those who would bring contraceptives into the relationship. Or, I can imagine a proposition that prohibits marriage except for those who have sex in a specific 'style'.

  • 36. Kate  |  December 6, 2010 at 9:54 am

    Let's write a Prop 69………..

  • 37. nightshayde  |  December 6, 2010 at 10:09 am


  • 38. Alan E.  |  December 6, 2010 at 9:59 am

    My favorite sign of the day was Shelly's and Ellen's. The number of years together has been crossed out a few times now to count up the years =)

  • 39. Alan E.  |  December 6, 2010 at 10:15 am

    checking now.

  • 40. Ann S.  |  December 6, 2010 at 10:03 am


    Kathleen and I got to be in the actual courtroom. It was amazing! And we had lunch with Sheryl and DaveP and Alan E. and his husband. Several of us shook David Boies's hand and Alan hugged Ted Olsen. We all got to meet Arisha.


    Rabid fan behavior aside, it was wonderful being there. The attorneys on our side did an awesome job, and Cooper and Tyler did a pathetic job. The judges were all very interested and asked very thoughtful questions.

    I feel very hopeful about this, but I think the ruling may well be narrow and apply only to California.

  • 41. Ann S.  |  December 6, 2010 at 10:05 am

    I cleek button now.

  • 42. MJFargo  |  December 6, 2010 at 10:07 am

    Just remembering when Judge Walker published his ruling and how stunning it was to read the breadth of it…doesn't mean the 9th will do the same, but doesn't mean they won't either. 🙂

  • 43. Kate  |  December 6, 2010 at 10:11 am

    Of course you and Kathleen got in! You are ANN S. and KATHLEEN, after all — and even the 9th Circuit must be privy to THAT. Think of the riot there would have been had they tried to keep you out. And I'm really, really jealous that you got to meet Arisha. Count me in as a rabid fan, all around.

  • 44. Kate  |  December 6, 2010 at 10:18 am

    Ann, I keep forgetting to ask — did you take your knitting?

  • 45. Ann S.  |  December 6, 2010 at 12:47 pm

    No, no knitting. Knitting and courtrooms don't mix well, as I have learned doing jury duty.

  • 46. Anonygrl  |  December 6, 2010 at 11:59 am

    I felt the same way about meeting Arisha (brief though it was) in Washington.

  • 47. Andrew_SEA  |  December 6, 2010 at 10:18 am

    Ann ~
    Not sure if you will read this – but PLEASE – let Bois and Olsen know that when you shake their hand or give them a hug – you do so for the thousands and hundreds of thousands of people like me who would line up just for the opportunity to graciously thank them for all of their work.

    I sincerely mean it… I was extremely moved by Olsen's passion today in fighting for my right to marry the man I have loved for 17 years.

  • 48. Alan E.  |  December 6, 2010 at 10:54 am

    There was something that Olsen told me when I asked for a hug.

    "Absolutely. It thrills me to see the response and I'm grateful for all of the support."

    I'm sure he knows that every thank you comes from every one of us. Send him an email, though, if you want. You may not get a response, but I can guarantee it will be read.

  • 49. Ann S.  |  December 6, 2010 at 1:25 pm

    Andrew, I agree with Alan that Olsen, Boies and the rest of their team know of the depth of support. My chance to shake hands with Boies was as brief as it was unexpected, and as it was still before the hearing (unlike Alan's hug from Olsen) it was not a good time for me to try to engage him in much conversation at all. They were both very friendly and personable. I'm sure they'll read your emails if you send any to them.

    Olsen's argument at hearing today was a really amazing piece of advocacy, and it was a privilege to be there.

  • 50. Richard A. Jernigan  |  December 6, 2010 at 6:43 pm

    Alan, I still have the responses I got from Ted Olson and from Ted Boutrous when I emailed the offices and called after the trial itself. It may take a few days or weeks, but you are so right, they read every email. The responses I got are proof of that.

  • 51. Ray in MA  |  December 6, 2010 at 10:44 am

    WOW. You went for what you wanted and got it! Love seeing that!

  • 52. Richard A. Jernigan  |  December 6, 2010 at 10:08 am

    Will read in full detail later.

  • 53. Carpool Cookie  |  December 6, 2010 at 10:18 am

    I still want to know who this Isabel Vargas, the deputy clerk from Imperial County, is…and why she didn't attend today. Surely NOM or someone would have paid for her ticket?

  • 54. Andrew_SEA  |  December 6, 2010 at 10:19 am

    probably not…. they are busy working on the next bus tour and she was left without a ticket.

  • 55. Carpool Cookie  |  December 6, 2010 at 10:40 am

    Ooops…have to clear this up.

    When the Imperial County's lawyer was saying that he "did not represent her and could not speak for her", he was referring to Vargas' boss, Dolores Provincio (?) The judge was trying to establish if Vargas had been given PERMISSION to represent the state on anyone's behalf.

    So, maybe Ms. Vargas was there today?

  • 56. takemusu  |  December 6, 2010 at 12:01 pm

    We were there. She was not.

  • 57. Kathleen  |  December 6, 2010 at 10:20 am

    Subscribing, so much commentary to catch up on!

  • 58. Sagesse  |  December 6, 2010 at 10:45 am

    Watching now. Catch up later.

  • 59. Ronnie  |  December 6, 2010 at 10:58 am

    David Boies & AFER Board President, Chad Griffin on tonight's HardBall w/ Chris Matthews…..<3…Ronnie:

  • 60. allen  |  December 6, 2010 at 11:40 am

    Thank you! for posting. I've been wanting to see this all day.

  • 61. Ronnie  |  December 7, 2010 at 12:53 am

    you're welcome….<3…Ronnie

  • 62. David from Sandy UT  |  December 6, 2010 at 10:59 am

    Religionist bigots here in Utardia–The Pretty Hate State (a.k.a. Utah) again are foaming at the mouth and spewing every form of irrational red herring that they believe justifies a two-class society. I would find their antics funny, except that I have to live with them and their nonsense.

    Utah–Bigotry Elevated

  • 63. Kate  |  December 6, 2010 at 11:00 am

    Alan E., I'm with you. There's no way I would have made it through the hearing in the big kids' room without getting myself kicked out. I would have happily joined you and the rest of the riff-raff in the overflow room. Besides, I don't own any court clothes.

  • 64. Ann S.  |  December 6, 2010 at 1:34 pm

    Most of us in the courtroom in the public area were dressed casually but not disrespectfully — no political t-shirts, no tank tops, no shorts, no flip-flops, but lots of jeans and other casual wear.

    As for keeping quiet, we were pretty riveted by what was going on and had no trouble keeping quiet.

    The biggest downside is that we viewed the lawyers who were speaking from the back. I do want to watch the c-span footage so that I can see their faces as they speak!

  • 65. Alan E.  |  December 6, 2010 at 11:12 am

    No one else is mentioning that the only current Supreme Court Justice that was named during the hearing–and done so by Olsen–was Kennedy, and he was even quoting him directly from the Romer case. Olsen is very smart. He even suggested a mundane topic as something Cooper could respond to, as if to direct where his two minutes should be focused on.

  • 66. Gregory in Salt Lake  |  December 6, 2010 at 11:25 am

    Clever! btw, thanks for all your reporting today Alan… glad you and your husband got to go. Me and my hubby laid on the bed together smiling, scowling…even clapping aloud at some points. Here's hoping for a quick favorable ruling!

  • 67. celdd  |  December 6, 2010 at 2:19 pm

    I thought I heard references to Judge Ginsburg as well.

  • 68. Leo  |  December 6, 2010 at 2:58 pm

    I'm pretty sure one of the judges mentioned Justice Ginsburg.

  • 69. Richard A. Jernigan  |  December 6, 2010 at 7:35 pm

    I believe that Justice Ginsburg was mentioned in reference to Arizonans for Official English.

  • 70. Ginger  |  December 6, 2010 at 11:56 am

    Here is an interesting slant on the idea of the judges ruling on only standing by Walter Dellinger at

    Basically, nobody has standing because nobody is due to suffer a concrete, particularized injury by the repeal of Prop 8. Therefore, the standing issue is directly related to the merits of the case itself.

    That this enormous result could follow because no one had "standing" to appeal Judge Walker's decision would not be as "technical" as it may appear. In this case the issues of standing and the merits are in deep resonance with one other. The common issue linking both is the fact that no one else is injured when a gay couple is married. That is why the state has no rational reason to deny a license to gay and lesbian couples in the first place, and that is also why there is no injured party with standing to carry forward this appeal. In an alternative universe with a finite number of marriage licenses, a straight couple ordered to give up their marriage license in order to make one available for a gay couple would have standing to sue and to appeal. But in the world in which we live, a straight couple's right to marry remains unimpaired by gay marriage. This case will be over—indeed it should be over—because no one has a legal interest in denying someone else's happiness.

  • 71. Ginger  |  December 6, 2010 at 11:56 am

    Whoops. Original url:

  • 72. takemusu  |  December 6, 2010 at 12:06 pm

    We liked the quote "We cannot take away a constitutional right based on a constitutionally protected activity." (re; Lawrence)

    Gaging by the other folks in the over-flow room today, others liked it as well.

  • 73. CaliGirl  |  December 6, 2010 at 12:16 pm

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

    Everyone knows that the bird is the word! A-well-a bird, bird, b-bird's the word…

  • 74. Kathleen  |  December 6, 2010 at 1:19 pm


  • 75. Carpool Cookie  |  December 6, 2010 at 3:01 pm

    I thought "Grease is the word"? (Have you heard?)

  • 76. MJFargo  |  December 6, 2010 at 11:34 pm

    Well it does have groove…it has meaning.

  • 77. Richard A. Jernigan  |  December 7, 2010 at 1:22 am

    You got that right. Now–who has the full lyrics? And I must say that Frankie Valli looked even hotter in Grease when he played Teen Angel than he did when he and the Four Seasons were one of the hot groups of the 50"s.

  • 78. fiona64  |  December 7, 2010 at 1:50 am

    Frankie Avalon was the Teen Angel in "Grease;" Frankie Valli sang the theme song.



  • 79. Richard A. Jernigan  |  December 7, 2010 at 2:48 am

    My goof. I still say they both looked even hotter then than they did in their younger days. Yes, they were nice to look at when they were in their late teens and early 20's, but like fine wines they only got better with age.

  • 80. MJFargo  |  December 7, 2010 at 4:16 am

    I never did bother to tell them apart (please don't hate me).

  • 81. Dave  |  December 6, 2010 at 12:16 pm

    If they do rule on the merits do you think a broad ruling or a narrow ruling is more likely? Walkers ruling seem fairly broad me to me, what are the chances they will uphold everything he ruled?

  • 82. Ann S.  |  December 6, 2010 at 1:36 pm

    I think it will be limited to California, because Prop 8 took away an existing right.

  • 83. Straight Ally #3008  |  December 6, 2010 at 1:10 pm

    Random thought induced by a long day:

    Casting for the movie:

    Judge Hawkins: Bob Balaban (A Mighty Wind, Ghost World, Best in Show)
    Judge Smith: Paul Wilson (one of "The Bobs" from Office Space)

    Don't have one for Judge Reinhardt yet.

  • 84. Sagesse  |  December 6, 2010 at 1:11 pm

    I've just finished watching. One thing that jumped out at me, Cooper said, three or four times that the CA Supreme Court 'invalidated traditional marriage'. I wasn't expecting anyone to call him on it… but it would have been satisfying to hear his explanation.

  • 85. Ann S.  |  December 6, 2010 at 1:37 pm

    I was sitting right there and wanted to jump up and say that my "traditional" marriage is doing just fine, thanks. But then I'd have been removed, so I restrained myself.

  • 86. Ronnie  |  December 6, 2010 at 1:32 pm

    Hour 1 of the arguments today…..<3…Ronnie:

  • 87. Ronnie  |  December 6, 2010 at 1:33 pm

    Hour 2 of the arguments…..<3…Ronnie:

  • 88. Ed  |  December 6, 2010 at 1:45 pm

    I watched it already, live, but Ronnie, you fucking rock!!!!!

  • 89. Ronnie  |  December 7, 2010 at 12:57 am

    ty…. ; ) …..Ronnie

  • 90. John Culhane  |  December 6, 2010 at 1:48 pm

    Very helpful analysis. I've guest-blogged here and posted my analysis a little while ago over at:

    I go into a bit more detail on Romer and how use of that case could limit the holding. I also explain why that would be a good thing.

    Thanks to everyone here for a typically exhaustive effort!

  • 91. Rhie  |  December 6, 2010 at 3:33 pm

    Will catch up someday

  • 92. Oral Arguments Heard in P&hellip  |  December 6, 2010 at 6:05 pm

    […] Flash 9th Circuit Hearing Analysis: Standing, Romer, and the Word [Prop 8 Trial Tracker] […]

  • 93. Tasty Salamanders  |  December 6, 2010 at 8:15 pm

    A little thought came to me so I have to ask: Do all the Judges write their own rulings, even if they ruled the same way as opposed to writing a single ruling and having multiple Judges sign it?

    Because I just wonder how this could effect the future of the case, say: that standing is denied, I've heard it said here that it is possible though highly unlikely that in such a case a Judge could still issue a ruling on the merits.

    So my main question is: If the Proponents are denied standing but a single Judge still gives a ruling/opinion on the case based on merits (if that is possible) how would that effect the case based on the fact that one Judge gave a ruling but the others didn't?

    Like I said I don't know if this is even a possible outcome but if it is I just wonder how it would go down.

  • 94. MJFargo  |  December 6, 2010 at 11:56 pm

    I don't see how a court can rule on an issue where there is not party before it. (I don't mean that kind of party, either.) If they rule the appellants/proponents have no standing, there is no appeal. They can't just cherrypick a case and say, "Oh! That one needs our sage advice." They really were trying to find a way that the proponents could have standing, and I doubt the California Supreme Court is terribly enamoured with giving it to them.

    They could risk doing an "Arizona" again and rule; therefore, ignoring what the SCOTUS has said in the past about writers of an initiative having standing and try to be more convincing on why writers of an iniative should HAVE standing. There was some banter between the panel yesterday regarding that.

    But irregardless for them to rule on there merits, someone has to have standing, but as Olson pointed out, the people appealing yesterday don't qualify because they must show:

    from Wikipedia
    1.Injury: The plaintiff must have suffered or imminently will suffer injury—an invasion of a legally protected interest that is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.

    2.Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.

    3.Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.

    Judge Walker pointed out the proponents–unless they are going to apply for a same sex marriage license–can show no injury if Prop 8 is repealed. The only individuals who can show injury are same sex couples and the State if the State can show how they would be harmed (and no one has yet to come up with a reason ANYONE would be harmed).

  • 95. elliom  |  December 7, 2010 at 2:50 am

    TS: IANAL, but this is what I understand from the bits and pieces our legal eagles have shared here. PLEASE correct me if I'm wrong!

    I think that one of the judges will write the official opinion of the court. Concurring judges can either sign that opinion, or write a concurrence. The official opinion sets precident, concurrences are persuasive, but not binding, same as dissents.

    I also gather that footnotes in opinions are sneaky little beasties, and that sometimes judges will give suggestions as to how they'd rule on further questions, should there be a remand. (eg: included footnote with hints on the courts leaning on constitutionality, should SCOTUS overrule them on standing.)

    I don't know how likely either of these are. If I were one of the judges, I don't think I'd particularly like to show my hand, at this point.

  • 96. LD  |  December 7, 2010 at 2:49 am

    If the major question (aside from standing) hinges on the removal of rights, then this case will surely be limited in effect to California, right? It could result in a decision that a state may not take away marriage once it grants it, but could not result in a decision that states must grant it. (Right?)

  • 97. elliom  |  December 7, 2010 at 2:58 am

    I think a lot of the effect this will have (from a merits perspective) will hinge on the reasoning the court puts behind it's decision. It's hard to tell how far this will (or will not) reach until we know what facts the court finds relevant, and the logic and legal resoning the court applies.

    For instance: if what the court finds is that ss couples are denied "marriage," which SCOTUS holds inviolate, we're on a different path than if the court finds for "ss marriage," on which SCOTUS has never ruled.

    The legal dictionary is going to change in the course of this, and until we know exactly what the new terms are, it's hard to do more than guess at the impact.

  • 98. Kathleen  |  December 7, 2010 at 8:26 am

    LD, you're correct. It has been one of the possible outcomes all along – that even with a win, even with a win at SCOTUS, it could be a win that depends on facts that really only exist in California (and maybe Maine).

  • 99. Richard A. Jernigan  |  December 7, 2010 at 9:00 am

    And now possibly Iowa, since the NOMbie candidate is the governor-elect and is already calling for an amendment that will invalidate the unanimous ruling of the Iowa State Supreme Court.

  • 100. mikenola  |  December 7, 2010 at 3:38 am

    One of the interesting aspects of these hearings are the questions from Judge Smith. I have watched it twice now on CSPAN and frankly I was impressed on the way a man who has been classified as very conservative and a Mormon (possibly?) dealt with direct questions about hooo-mo-sexxx-ualllity… as his drawl implies.

    just based on the questions he asked and the pointed way he dealt with the "facts" about the deputy clerk from Imperial County, it would seem like he will deny standing.

    That he tried to get the haters lawyers to "differentiate" their claims shows me he sees the constitutional weakness in them.

    Of course I could be reading to much into it, but when you contrast his questions to those of Scalia and Thomas on issues they are ostensibly against, you see that he made serious efforts to make sure he stayed out of any personal bias realm he might inhabit in his private life.

    I personally appreciate that in a judge and particularly on an issue as important as this.

    Also I think that the standing issue is actually MORE important to the entire country than our rights issue. I know many will not see that the same way, but if we put aside our needs and demands to be treated as equals, which is truly our right as Americans, the issue of standing will really affect a broader number of states, courts and issues over the long term.

    My reasoning is that if either Imperial County or the haters are given standing, even in limited scope just to reach the merits, it sets as precedent the ability for almost anyone to tie up any voter legislation for almost any reason.

    It is easy to visualize (if that happens) a police department, fire department, city sanitation supervisor, etc from demanding the right to speak for the entire state in any issue they don't agree with.

    True it is unusual for this type of standing issue to come up currently, opening that door guarantees a flood of spurious and detrimental claims by groups that oppose state or voter legislation. That all costs the taxpayers serious money that none of us have to spend.

    The saving grace is that if as I suspect the lose on standing, it will be to Justice Kennedy they must first appeal and he has signaled his doubts that proponents will have standing.

    They will then 'justice shop' until they get one, probably Thomas, to allow them an appeal (this is traditionally a proforma situation just to stop the justice shopping) heard and I really don't think that Roberts, Alito or Scalia will say proponents will have a right to standing and I am positive that none of the liberal judges will do it either.

    That outcome is pretty cool for gay rights, in that the underlying legal theory then forcefully becomes that to have standing you must have a demonstrable individual harm which in turn makes state government claims of harm that much more difficult to justify for future cases.

    I think that the affect of that, in the long run, will be that new cases brought in courts against state constitutional amendments will actually have to be tried on merits not on the fact a law exists which is the way all the other gay marriage cases have previously been decided.

    Another effect will be that the Iowa challenges to existing state law would then have another HUGE hurdle to overcome when NOM and the haters try and force a state referendum on gay rights.

  • 101. Kathlene  |  December 7, 2010 at 5:34 am

    If/when this goes to SCOTUS, after reading Scalia's scathing comments about the haters in doe v. reed I think that we might be able to sway him. Thomas is unmovable though, he will definitely rule against ssm.

  • 102. Kathleen  |  December 7, 2010 at 5:52 am

    While I'm loathe to give up on any Justice, I consider Scalia a lost cause as well. His attitude toward the litigants in Doe v Reed was disdain towards people thinking they get to hide in a democracy. While Scalia said in his dissent in Lawrence, "This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples," I feel confident he can manage to come up with something to shore up the argument when/if the question is in front of him.

  • 103. Ann S.  |  December 7, 2010 at 6:00 am

    Yes, Scalia will not for a moment feel bound by what he said in his dissent in Lawrence.

  • 104. Coronal  |  December 7, 2010 at 7:38 am

    IIRC, he read his dissents in Romer AND Lawrence into the record from the bench. That's quite rare, I believe. It's pretty unlikely that he'll ever side with us on any case involving gay equality.

  • 105. Ann S.  |  December 7, 2010 at 7:41 am

    If you open the dictionary to the page with the word "animus" you will find Scalia's picture.

  • 106. Richard A. Jernigan  |  December 7, 2010 at 7:51 am

    Gee, and I thought that was his picture I saw when I looked up "jackass."

  • 107. Tuesday Open Thread : Del&hellip  |  December 7, 2010 at 9:01 am

    […] the Prop 8 appeal began. It wasn’t a great day for the pro-Prop 8 (anti- marriage equality) side. Judge Smith focused a couple times on whether the State of California was in a worse position for […]

  • 108. Judge Reinhardt’s q&hellip  |  December 8, 2010 at 7:19 pm

    […] Adam Bink’s paraphrase at Prop8TrialTracker, explained why not: “Was the ‘…failure to defend Prop 8 … 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?’ [my punctuation] 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 3rd District, and later by the California Supreme Court.” […]

  • 109. Prop 8 Trial Tracker &raq&hellip  |  January 18, 2012 at 11:09 am

    […] could redress the injury.  The 3-judge panel of the 9th Circuit assigned to the Perry case also questioned the proponents’ standing, asking whether they could demonstrate how the striking down of […]

  • 110. Prop 8 Trial Tracker &raq&hellip  |  February 6, 2012 at 7:53 pm

    […] decision.  When the Perry case was argued before the 9th Circuit, the 3-judge panel questioned the proponents’ standing, asking whether they could demonstrate how striking down […]

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