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Judge Reinhardt’s question: Which is worse? Taking rights away or never providing them?

An insightful perspective on the 9th Circuit’s Prop 8 hearing from Syd Peterson, cross-posted from Karen Ocamb’s LGBTPOV. — Eden

By Syd Peterson

Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith for the U.S. 9th Circuit Court of Appeals in San Francisco (AP Photo/Eric Risberg, Pool)

My mind keeps coming back to a question posed by Judge Reinhardt yesterday at the Perry vs. Schwarzenegger arguments in the Ninth Circuit. Which is a worse thing to do, he asked attorneys from both sides of the case, taking rights away from a group of people who were already exercising them, or never providing them those rights to begin with?

Reinhardt’s question could be a pivotal issue in the Perry appeal. It’s ironic, though, that it seems to turn on its head the old adage that “It’s better to have loved and lost than never to have loved at all.”

The arguments raised more questions about this then they answered. Charles Cooper, arguing for the Proposition 8 proponents, several times cited the California Crawford v Board of Education case, which concluded that states that have done more than the federal Constitution requires can return to the minimum provided by the federal Constitution’s floor. Ted Olson, counsel for the plaintiffs challenging Prop 8, said that other cases, including those dealing with California’s and Colorado’s antidiscrimination laws, had suggested otherwise. But the answer may lie in the arguments made by San Francisco Deputy City Attorney Therese Stewart (who also happens to be the only LGBT-identified person who spoke at the arguments yesterday).

San Francisco Deputy City Attorney Therese Stewart.

As Stewart pointed out, the California Supreme Court had held that the only possible reason to deny same-sex couples the right to marry when they were provided all the rights and benefits of marriage through domestic partnership was to convey that same-sex relationships were not as good as those different-sex couples form and that same-sex couples, and lesbian and gay people generally, deserve to be treated worse. California voters didn’t change that reasoning; they couldn’t have, noted Stewart. So when they took away same-sex couples’ right to marry, voters necessarily were doing so because they wanted to have the state treat lesbian and gay couples worse and to convey they are unworthy of equality – and that is what is particularly offensive to the federal guarantee of equal protection, she continued.

What do you think? Which is worse: taking away a right or preventing someone from having it the first place? And is that general question the most significant question in Perry? Or is the more important matter that the right taken away was the right to equal treatment, and that it was taken away to intentionally designate one group of people as inferior?

Judge Reinhardt’s question was one of many that gripped those of us who were lucky enough to be in the Ninth Circuit’s imposingly ornate courtroom, listening intently to every word as many others followed along on CSPAN or read tweets about the proceedings or refreshed Prop8TrialTracker every two seconds. I believe I speak for most of us non-lawyers when I say that the first section of the hearings, the part about standing (which is just a fancy legal word for “having the right to sue”), was challenging to piece together.

From what I understand, the section boiled down to two questions: (1) Who has the right to defend a statute when the (official) defendants don’t? and (2) If the 9th Circuit finds that those who appealed have no standing, what happens next?

Charles Cooper, lead attorney for the proponents of Proposition 8.

Lambda Legal’s Marriage Project Director Jenny Pizer explained to us at yesterday morning’s rally before the Ninth Circuit argument began that federal courts limit who can bring cases before them through the concept of “standing,” (legal terminology for “having the right to sue.”) “The court makes a distinction between litigants who are being harmed or who will be harmed [who have the right to sue or appeal], as opposed to people who [simply] have a strong feeling about an issue [who don’t].”

As you likely know, California Governor Schwarzenegger and California Attorney General declined to defend Prop 8 in Perry. Judge Randy Smith noted that California’s Governor can’t veto voter-approved initiatives, and that California’s legislators cannot amend them. By not defending Prop 8,were Schwarzenegger and Brown in essence violating that prohibition?

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.”

So, if government officials decide not to defend and don’t have an obligation to do so, who, if anyone, does have the right (“standing”) to defend the statute? What about the sponsors of an initiative?

Bink quotes Boies, who stated, “Appellants here do not have a particularized injury that the Supreme Court said you must have.”

Robert Tyler, Attorney for Imperial County. Photo credit: Syd Peterson.

Well, if the sponsors of an initiative can’t defend a statute, what about state workers, like, say, county clerks (who supervise the issuance of marriage licenses)? Robert Tyler, the attorney for Imperial County, argued that Imperial County Deputy County Clerk Isabel Vargas had standing to defend Proposition 8 because her duties would be altered depending on the fate of Perry. “She is in a legally conflicting situation,” he argued.

Olson and Boies cast doubt on Vargas’ role as a state worker and noted that, even if the County Clerk were considered a state official who might have standing, that wouldn’t apply to someone lower on the totem pole.” It’s interesting to note that, during the press conference after the arguments, a reporter asked the generally overwhelmed Tyler why he wasn’t representing Imperial County’s actual County Clerk. Tyler sniffed, “Ms. Vargas is my client and that’s all I’m going to say about that. Next question!”

Tyler noted that California Government Code allowed a government official, such as a county clerk, to commission other persons within the clerk’s office to act on the clerk’s behalf. Olson pointed out how this was of no help, however, because the Imperial County Clerk had not commissioned Vargas to act on the Clerk’s behalf.

So what happens if the 9th Circuit finds that those who have appealed have no standing? The attorneys and judges exchanged numerous ideas about impact of this might have on Judge Walker’s ruling: Would that mean that only the Perry plaintiffs could marry, or would the broader injunction Judge Walker issued stand as written? And, if the Court determined that no parties have standing, would the 9th Circuit be entitled to say anything about the permissible scope of the injunction, or about the constitutionality of Prop 8 at all? Many question, but few clear answers to them were provided in yesterday’s arguments.

Another important part of the proceedings occurred when Judge Smith questioned Stewart on Cooper’s earlier statement that the state has an interest in preserving procreation. “Same-sex couples do procreate,” Stewart replied. “Not in the old-fashioned way, but the point is that the state of California doesn’t discourage LGBT people from being parents, or treat them differently [than parents with other family structures].” “In other words,” Brian Leubitz at P8TT paraphrased, “if we are only fighting over a word, and no substantive differences at the state level, aren’t we essentially creating a subclass?”

Cooper’s response: “The word is the institution. If you redefine the word, you change the institution.” Luebitz writes that this was …”a big moment of the oral argument.” He continued, “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.”

Back to Reinhardt’s question: Which is more terrible: losing a right or never having it?

It makes me think back to the summer of 2008, a.k.a. The Summer When I Went To 30 Weddings. 18,000 same-sex couples got married in five months. Many Californians, and many outsiders with some queer link to California, had a chance to see what legally sanctioned weddings looked like. There’s no doubt in my mind that we’re better off with five months of marriage equality than with none.

But that’s not what Reinhardt’s question was asking. He put the focus on those who were doing the “taking away,” who, in this case, are the approximately 52% of California voters who enacted Prop 8 in September 2008. And he may be on to something. Isn’t it worse to call off an engagement than to never have asked someone to marry you? Isn’t it worse to breach an agreement than never to have made it? And, as Terry Stewart explained, isn’t it worse for a state to amend its Equal Protection clause (as Proposition 8 did) to intentionally treat people unequally than it is to have never understood that it violates equal protection to relegate same-sex couples to domestic partnerships instead of allowing them access to marriage?

Ted Olson noted how crazy it is that some same-sex couples are married in California while others can’t be and that, if a California same-sex married couple divorces, they can’t even remarry one another here. Maybe there’s something to the notion that it’s worse to have known what equality feels like and then to have it yanked away.

112 Comments December 8, 2010

Morning after video/analysis of the 9th Circuit Perry v. Schwarzenegger hearing

By Adam Bink

Good morning after! After looking over the web and my inbox, I’ve got some excellent nuggets to satiate that analysis appetite. The best of what’s around (with apologies to Dave Matthews Band) can be found below.

  • Hour 1 and hour 2 of yesterday’s trial on video:

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

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.

129 Comments December 6, 2010

9th Circuit Perry v. Schwarzenegger hearing: analysis and discussion

By Adam Bink

Well, that was something. Some brief reactions:

(a) Cooper’s constitutional argument turned almost entirely on the word itself- marriage- and as Brian noted in our live-blog thread, that this word is simply special.

(b) Very interesting and promising that Judge Hawkins seemed to ridicule Cooper’s discussion of the Romer v. Evans case when Cooper said that case was far-reaching and different, interjecting, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Cooper could not square the circle that, to him, Amendment 2 was a noxious and over-the-top move by the voters of Colorado, but taking away the fundamental freedom to marry from same-sex couples is fine by him, and Hawkins seemed to note that.

(c) Tyler was terrible. Couldn’t explain why the clerk herself wasn’t there, made numerous factual mistakes, unprepared to respond to challenges from the judges.

(d) Ted Olson hammered home repeatedly, and without interruption that the US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. He noted the Supreme Court said this 14 different times. That, along with Olson’s discussion points that (a) even if raising children in same-sex households were a problem, the remedy is not to deny the freedom to marry to same-sex couples, and (b) as Brian put it, you can’t wall off a right because children shouldn’t be exposed to sexuality… it just doesn’t stand up to even the lowest level of rational basis- seemed to be the most poignant in the entire day.

I will be posting further reactions from others throughout the afternoon, as well as the scene from outside the courtroom.

What are your thoughts on how it went?

Update: Excerpt of a statement from Freedom to Marry’s Evan Wolfson:

“Earlier this year, the anti-gay forces behind California’s Prop 8 were yet again shown to have no evidence and no good arguments that would stand up in the light of a courtroom, under oath and cross-examination. Lacking any serious expert witnesses or facts to justify marriage discrimination, they fought to block cameras from the courtroom and actually asserted that they ‘don’t have to have evidence.’ After Judge Walker conclusively found that they had failed to justify stripping the freedom to marry away from California’s gay couples, the anti-gay groups swiftly took to attacking the judge.

“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras, and all the world could see what a majority of American people have already come to understand: there is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage. When the gavel came down, it was clear yet again that the anti-gay forces still have nothing. Their case is, in Lincoln’s words, ‘as thin as the homeopathic soup made by boiling the shadow of a pigeon that starved to death.'”

Update 2: Karen Ocamb has a good and quick summary of the pre-trial rally.

Update 3: Anti-equality folks outside the courthouse:

Anti-equality folks outside the courthouse

Update 4: Brief reactions from some trusted legal eagles in the legal community around marriage equality are coming in. I’ll get them up later.

Update 5: First reaction from members of the legal community: here’s what Evan Wolfson sent me over e-mail:

Most striking was the complete failure — I mean complete! — to show how Judge Walker erred in his marshaling of the facts, evidence, cross-examination, and record showing a lack of a legitimate, sufficient reason for stripping away gay people’s freedom to marry.  They came in with nothing, and left nothing for the court.

Update 6: Shannon Minter of the National Center for Lesbian Rights, who was the lead attorney on the In re Marriage Cases often cited in today’s hearing, and who we invited on for an open Prop 8 trial Q&A a few months back along with his colleague Chris Stoll, sent in the following to me over e-mail:

Hey Adam- The argument went very well for the plaintiffs.  Judges Reinhardt and Hawkins seemed quite critical of Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation.  The judges pressed Cooper on how procreation could be a justification for Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples.   The judges were very tough on both sides on the question of standing.  But in the end all three judges seemed highly skeptical that Imperial County has standing, and they also seemed convinced  that current U.S. Supreme Court precedent casts much doubt on whether the proponents of Prop 8 have standing either.

Last, Therese Stewart from the San Francisco City Attorney’s office did a brilliant job of laying out why Prop 8 is uniquely irrational based on the unprecedented circumstances under which it was passed. No other state has first said that gay couples have a constitutional right to marry, and then taken it away.

Update 7: Shannon has a longer reaction over at Karen Ocamb’s space.

Update 8: Just learned David Boies will be on Hardball within the hour. I’ll be watching and will update with notes.

Update 9: Predictably given their attempted pre-buttal of this hearing, NOM throws a fit:

National Organization for Marriage Decries Biased Hearing in Ninth Circuit

National Organization for MarriageTM (NOM) today decried the hearing to determine the constitutionality of Proposition 8, California’s constitutional amendment providing that marriage is only the union of a man and a woman. NOM is protesting the involvement of Judge Stephen Reinhardt because Reinhardt’s wife has been involved in the case from the beginning as the Executive Director of the ACLU of Southern California.

“This hearing makes a mockery of the federal judiciary,” said Brian Brown, president of NOM. “Citizens are entitled to a guarantee of impartiality from their judiciary. Yet here we have the spectacle of a federal appeals court justice ruling on a case in which his wife represents a group that is a participant. A cynic would be left to wonder if the fix is in for marriage in the Ninth Circuit.”


“Chuck Cooper did an extraordinary job defending Proposition 8 and the right of California voters,” said Brown. “Cooper made a compelling case that not only is limiting marriage to a man and a woman a rational position for voters to take, it is the position taken by virtually every other country on earth, and indeed virtually every nation throughout the history of civilization. However, it’s hard not to think that none of that will matter when a Judge like Stephen Reinhardt, who has such an obvious conflict, is allowed to sit in judgment of the people of California.”


“The long road to determine the constitutionality of Proposition 8 cannot be allowed to go through the courtroom of a Judge whose wife is a key participant in that case,” said Brown. “It’s obvious that Reinhardt will vote to overturn Prop 8. We can only hope that once this case reaches the U.S. Supreme Court, that the people of California will finally get an impartial day in court. When they do, we are confident that marriage as the union of one man and one woman will be vindicated.”

Never mind judicial independence, never mind Reinhardt’s occasionally-sharp lines of questioning, never mind anything with these folks. No, what is a “mockery of the federal judiciary” is Brian Brown and NOM.

Update 10: Rick is at a post-trial press conference with Cooper. He sent back the following dispatch:

Cooper says that he respects the other side and regrets that they do not respect him/his arguments equally. He says that in order to find for the plaintiffs, the courts must find tens of millions of Americans who voted against marriage equality. Cooper said the other side are demeaning and ridiculing. He continues by arguing that all Californians are victims if their elected leaders do not carry out the law, and that voters are sovereign.  This is laying grounds for anti-court hatred.

Update 11: David Boies and Chad Griffin are now live on Hardball. Boies makes the point that there’s no useful societal point to banning s-s marriages. Griffin talks about “state-sanctioned discrimination” and how it gives license to other forms of discrimination. Matthews asked if Boies’ argument would have been credible in the early days of our republic. Boies responds that (a) The bias we see today against gays and lesbians is a product of the last 100 years (b) originally, this country was “we the white male propety-owners”. Griffin in response to a question from Matthews says this should not be up to a vote of the people. Matthews asks about possibility of getting Scalia-types on this. Boies says “we’re not giving up on any of the justices b/c if  you look at Ted and myself, it’s hard to find two on the most opposite poles of the political spectrum” [paraphrasing]. Griffin briefly discusses inter-racial marriage. Matthews says thanks, they sign off. They both did very well.


205 Comments December 6, 2010

9th Circuit Perry v. Schwarzenegger hearing: live thread and chat

By Adam Bink

Welcome to the live thread for the 9th Circuit hearing of the Perry v. Schwarzenegger case appeal. If you Googled “Prop 8 trial” for coverage and found yourself clicking on the first search result, welcome to!

Today, we’ll have four P8TT folks covering the hearing. I will be live-blogging the coverage and running the show here at the P8TT mothership; Courage Chair/Founder Rick Jacobs, who helped make P8TT the go-to spot by live-blogging the Judge Walker hearing from the courtroom, and Field Director Arisha Michelle Hatch will be sending in dispatches, including photos, from their seats in the courtroom and at the events outside prior to the trial commencing; and P8TT legal analyst/Calitics blog publisher Brian Leubitz will be adding legal analysis in this thread. I will also be occasionally live-tweeting via my handle @adamjbink. You can also follow @rickjacobs, @equalityontrial and @couragecampaign for updates, as well as Equality on Trial on Facebook. And of course, we look forward to dispatches in the comments from commenters Kathleen, Ann S. and other folks who will be there, and thoughts from the rest of you!

As a reminder, the first hour will be spent arguing the issue of standing, and the second hour on the issue of the constitutionality of Prop 8 itself. All updates you see are from me unless noted otherwise. New updates will scroll from the top.

12:46: The court stands adjourned. Stay tuned for more analysis here.

12:45: Cooper concludes by quoting from Romer re Amendment 2 in arguing that Amendment 2 went too far in singling out a class of people, but the effort to “protect” marriage does not.

12:43: Brian’s take on Olson’s closing arguments:

In the record, there has been no showing of harm. Could distinguishing marriage from Dps in name only, that it is rational to encourage safe procreation? That would still not be a rational basis. The word is the institution, but children are not shown to be better off.

The California system is irrational, because there are different classes. Heterosexuals can marry. Some homosexuals are allowed to be married if they married in 2008, but they can’t even remarry the same person if divorced.

The citizens of California who are behind one fence, gays and lesbians, can not take part in the institution that everybody else can. (Marriage) That is not allowed under the Constitution.

Question: Can we go beyond California? Can we go beyond the Roemer rationale, that is taking away a right?

Olson: Yes you can. You can go beyond California, and the Roemer rationale. It can not be justified under any standard. All of the arguments are neither rationale nor Constitutionally permissible.

12:42: Cooper will spent a few minutes rebutting. Starts out by saying that if Loving wanted to marry the man with whom he had sexual relations and the case was brought on those grounds, it would not have been ruled the way it was.

12:38: Therese Stewart, Chief Deputy City Attorney from the City/County of San Francisco steps up. The crux of her argument is that the only reason behind Prop 8 is animus towards same-sex couples- there is no rational basis. Notes that CA family law treats gay/straight couples as the same. Equal protection doesn’t allow the state to enact a measure based on a view that some people are unworthy. Her time spent arguing is short.

12:30: A quote from Olson so spot-on I typed verbatim (first part): “California has taken a class of citizens and put them in a separate category; that act of discrimination and there is no doubt that it is discrimination and there is no doubt that it does great harm, can it be justified under any standard of constitutional analysis and I argue it cannot be justified at the lowest standard of constitutional analysis.” He concludes his argument on an extension of this point.

12:28: Olson describes the “crazy quilt” of California laws e.g. some s-s couples who married can stay married, but if they get divorced they cannot get re-married, etc. in arguing that the current marriage system violates equal protection and due process under the 14th Amendment.

12:25: Brian dropped in this summary of the last 10 minutes or so:

Olson: Taking away rights because of their identity as homosexuals violates Crawford in light of Roemer. How can a constitution right be taken away because of the constitutional activity under Lawrence, sexual activity? It cannot be taken away because of their orientation. It discriminates on sex and sexual orientation. Proponents have come up with no rational reason to repeal decision.

You can’t wall off a right because children shouldn’t be exposed to sexuality. It just doesn’t stand up to even the lowest level of rational basis.

In Roemer, Justice Kennedy said that the reasons behind the measure must be rational. Reasons cannot come out from the sky.  This is an important aspect of the “heightened” rational basis test emerging from the jurisprudence of Justices Kennedy and O’Connor.  Essentially, the reason must come from the record, and from the background of the measure.

12:22: Olson argues that gays/lesbians having immutable characteristics + the damage done by discrimination= heightened scrutiny in this case. Can’t name any damage that would be done. Smith interrupts. Cites a number of various pro-Prop 8 arguments (children likely to thrive when raised by both father and mother, etc.) and asks if that would survive the rational basis test. Olson challenges such an argument re children/mother/father and says it’s easy to say those things, but “the remedy doesn’t fit the so-called problem… 30K children in same-sex households today… if you had s-s marriages, it doesn’t change where the children will be raised.”

12:16: Hawkins asks about the pro-creation argument that Cooper made. Olson replies that same-sex marriage will not keep opposite-sex people from getting married, getting divorced, having kids, etc. Points to Cooper’s concession “I don’t know” when asked in the lower court case what harm there would be.

12:13: Olson cites Lawrence v. Texas in arguing that a Constitutional right be taken away because of a Constitutionally protected “activity.” It’s not just a right of same-sex persons, it’s a right of all individuals. Ridicules pro-Prop 8 supporters’ argument that opposite-sex marriage must be protected in order to protect kids, saying if that were a sound justification, we  should all be banning video games, comic books, and the like.

12:07: Olson deries Cooper’s discussion of “society’s interest in procreation.” He says rights are not California’s right, or the voters’ rights, but individual rights under the 14th Amendment, and denying marriage could take that away. Very sharp point.

12:04: Olson continues, the In re Marriage Cases makes all this (Prop 8 itself) worse. Olson says Cooper’s definition of marriage is wrong. Notes US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. Notes Supreme Court has said this 14 different times.

12:01: Ted Olson steps up to the plate. Off the bat, plainly notes that CA voters have enshrined discrimination into the Constitution. Voters have “denied access to what the Supreme Court has noted is the most important relationship in life.”


12:00: Brian Leubitz notes to me over e-mail, “The argument seems to be boiling down to the word. This is shaky ground for Cooper. He is now arguing that marriage (the word) is just special. He is arguing that marketing is somehow enough of a reason to discriminate. Cooper and Smith are going back and forth, looking at Roemer, and whether states can be damaged constitutionally by acting towards giving rights.”

11:59: Smith asks whether a state that doesn’t have domestic partnership benefits has a stronger argument for rational basis. Cooper says if this case is to be decided be “heightened scrutiny”, then it is a harder case to make. This concludes his remarks. Is given 2 minutes for rebuttal by the judges.

11:54: Reinhardt asks, isn’t it different when you take [marriage] away than when you’re giving it? Cooper replies that the people of California are “a tribunal over their Constitution.” Hawkins asks if this were about civil unions, would Cooper have the same argument? Cooper says yes. Hawkins asks if people denied the right of same-sex partners to visit one another in the hospital and had added that to the ballot language in Prop 8, what would Cooper say? Cooper replies that if rights “go beyond” what’s in the federal constitution, then the people have the right to return to what’s a general standard in all states- and that seems to be Cooper’s argument re what the people of California are doing here.

11:46: For those of you following along here and not watching, a quick image of what this all looks like (Cooper arguing):


11:44: Cooper seems to be arguing that the courts should respect the will of the people in passing Prop 8, and that in California, the people retain the ultimate power, so courts should defer when voters vote to amend the Constitution. Reinhardt acknowledges that the Constitution can be amended, but asks if there is a valid reason to amend the Constitution.

11:42: Brian’s legal analysis of this section:

Cooper: The central point is that the distinguishing characteristics of opposite sex couples. We are arguing that the rational basis test applies. There is some rational basis, so it must be upheld. Only if the court concludes that there is no rational basis, that there is nothing to say of the definition of marriage from time immemorial, there is no rational basis. But, we have a rational basis. The key reason of marriage was procreation. Society has an interest in a sexual relationship. It needs another generation. Society is threatened by an unintentional and unwanted pregnancy.

Cooper is bringing up the concept that “single parent families” need help. This is fascinating, and really, nowhere in the record.

Judge Reinhardt: That sounds like a good argument for prohibiting divorce. How does allowing marriage equality damage procreation.

Cooper: Opposite sex couples can procreate unintentionally, and create unwanted pregnancies.

Judge Smith: What is the purpose of the initiative that says they have the same rights as opposite sex couple, but they don’t get the title. What is the rational basis for just excluding the word marriage.

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

11:39: It is difficult to follow Cooper’s argument- he is talking himself in circles. Or as Rick put it well to me, the only case he has is a tautology: marriage is between a man and a woman. If it’s not between a man and a woman, it’s not marriage.

11:36: Cooper replies that Amendment 2 (as passed by Colorado voters) was different because it was a sweeping case that affected all basics of civic life for [homosexuals] and that’s why it was struck down in Romer v. Evans.

11:35: Hawkins asks about the famous Romer case. Cooper replies that that case referred to a lot of rights. Hawkins interjects, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Very interesting point from Hawkins and promising to see him say that.

11:33: Reinhardt asks why same-sex couples shouldn’t be allowed to be married and live together in a happy, healthy home. Cooper replies that same-sex couples cannot procreate w/o a 3rd party and that’s the rational basis. Smith asks what the rational basis is to deny marriage, if same-sex couples have all the rights that opposite-sex couples have, and we’re left with the word “marriage”. Cooper discusses re-definition of “the institution”. “You cannot separate the two” [referring to the name and the institution]. If we do, what we are left with is a genderless institution that bears no comparison to the real institution of marriage.

11:28: Cooper says a rational basis test must be applied here. There is a rational basis to limit definition of marriage to opposite-sex couples and it must be upheld.

11:25: And we’re back. Cooper is up to address the constitutional issue. Hawkins asks if people of California could re-institute school segregation by vote. Cooper concedes no, because the Supreme Court has ruled that’s unconstitutional. Hawkins asks how this situation is different. Cooper replies that this case is nothing like, for example, Loving v. Virginia, where the Supremes ruled that there is no rational basis for the gov’t to deny the right of a mixed-race couple to marry. It’s interesting that Hawkins led off with that.

11:14: While we’re on recess, Rick notes over e-mail to me that this is also the courtroom in which en banc hearings take place because it’s so gorgeously ornate. The losing party can appeal to the full 9th Circuit and obtain an en banc hearing of 11 judges.

11:07: Ten-minute recess before the 2nd hour addressing issue of constitutionality. Lots to process.

11:06: Cooper is back up. He says Reinhardt nailed distingushing Karchner and Arizonans. Nobody in Arizonans found any law that showed proponents could appeal. Cooper brings a State Court Supreme Court, the Strauss case. The proponents were allowed to intervene in Strauss. He says if 9th Circuit doesn’t agree with him on standing, then they should ask CA Supreme Court before dismissing this case and allow a single district court decision (Judge Walker’s ruling) to nullify the will of 7 million Californians.

11:04: Here’s Brian Leubitz’s summary:

Boies: CA Supreme Court gave a one sentence denial as to forcing the AG to appeal, there was no rationale provided.

No clerks are technically bound by the injunction, save Alameda or LA. However, the remainder of the state, the power to execute the laws go to AG and Governor. The deputy clerks will be required to act by the AG and Governor. Clerks are ministerial, as defined by Lockyer case. They are required to act as the Governor and/or AG tells them. Thus, the deputy clerk of Imperial County should not be allowed.

Nullification Question: Does AG and Governor not defending nullify the people’s decision in the form of Prop 8? Boies says no, because they have seen the district court’s decision and are not bound under California law to seek further decision. The Supreme Court could have required AG action, but did not do so.

Scope of the injunction:

Boies: If the court concluded that the district court exceeded subject matter jurisdiction, but Boies is not aware of any precedent to edit the injunction. He is relying on AG to affect the injunction. The injunction goes to those who are controlled by the defendants, in this case the AG.

11:01: Boies wraps up by saying this case is similar to In re Marriage Cases. Proper “respondents” are AG, Gov, legislature. Appellants here do not have a particularized injury that the Supreme Court said you must have.

10:57: Reinhardt asks, doesn’t the injunction affect all those who act to perform the marriage (e.g. doesn’t it cover Vargas, the county clerk, and therefore she has standing?). Boies: The injunction itself didn’t go as broad as it might have, so no. Caveat, we haven’t talked about the registrar, who will under this injunction, have to change the form and content of the marriage license. Boies also notes that CA Supreme Court could have ordered the Gov/AG to intervene and defend, but didn’t.

10:55: Reinhardt jokes that if Boies has to depend on the AG and Gov (to not appeal), he’s lucky the [2010] election came out the way it did. Ha.

10:52: Boies notes that one does not have standing to act as defendant unless he/she/organization has “personal, concrete, or particularized injury.” Which, he’s arguing, an Imperial County clerk and does not have. He notes that U.S. Supreme Court has ruled in this manner over and over.

10:51: Boies notes that in the Arizona case, Justice Ginsburg said proponents aren’t authorized to act under state law.

10:45: Boies replies, citing other California-specific cases in which proponents did not have standing. Reinhardt suggests that perhaps the 9th Circuit court should ask the California Supreme Court about what the standing law is. Notable: “The fact that there’s no one to defend doesn’t give standing [to the defendant-intervenors].”-Boies

10:42: Smith continues that the governor has an effective veto if he does not appeal.

10:41: Smith discusses how if Prop 8 (and all initiatives) could not be vetoed or amended by the legislature, right? So if that’s so, the AG’s actions and Gov’s actions have nullified the basic efforts of the initiative to be placed on the ballot and to obtain passage. He’s arguing that if Jerry Brown and Schwarenegger didn’t appeal, they effectively nullified it.

10:39: Boies is arguing that because all the clerks are ministerial officials who simply issue marriage licenses to whomever the state determines gets marriage licenses, that function will be the same now or later. Meaning, their duty will not be impacted, as Tyler is arguing.

10:37: Boies: Lockyer tells that county clerks are just “ministerial officials… who must apply the law as set forth by the AG’s office and the  government.”

10:33: David Boies is up. Bring it, Boies. He is quickly asked if Judge Walker is wrong about the registrar controlling the functions of county clerks and she is not bound by the injunction, and if she is not, how does she have standing? Boies says that’s correct, and she does not have standing. Reinhardt asks, are the clerks of Alameda and Los Angeles counties bound by injunction? Boies says no. Marriage is a statewide, not local/municipal, concern. Hawkins asks if the injunction was enforced, could county clerks refuse a marriage license to a same-sex couple. Boies says yes, but if she did so, the AG would act to make the enforcement uniform, which would be a state proceeding.

10:30 Brian sent in his analysis of the last 15 minutes:

Robert Tyler: Attorney for Imperial County, actual client is a deputy clerk.  Their client is Ms. Vargas, a deputy clerk.  Judge Hawkins is grilling him on whether Imperial County even has the right client.

Judge Smith: “All political functions remain vested in an officer.” Imperial County doesn’t have authority to act without the clerk. Here, the clerk has not given power to the deputy clerk. Deputy is a mere agent, and cannot act without the clerk.

The judges are looking at whether the deputy clerk is bound as a state officer. But the bigger issue seems to be that the Imperial County intervention doesn’t actually have the clerk here.

“When you are asked a question, and you don’t know the answer, say so.” Highlight of the day.

10:29: Closing up, Tyler argues (the crux of his case) that the county clerk will be affected by the outcome of this case, which will alter Vargas’ (the county clerk) duties as she is placed in a conundrum. Hawkins asks, yes or no, whether Vargas is bound by Walker’s injunction (pointing out that she isn’t placed in a conundrum). Tyler concedes no, she is not.

10:28: Reinhardt asks if Board of Supervisors agrees with the Imperial County clerk. Tyler says yes, in fact she is appointed by the BOS. Then he’s handed a note saying, no, she’s elected, and tells the judges so. Whoopie.

10:26: Reinhardt is lambasting Tyler for not knowing the answers and instead of saying he doesn’t know, jumping around the issue. Hawkins asked if a deputy clerk in Los Angeles or Alameda county come in and seek standing, saying they don’t agree with “my boss”? Tyler says yes. Hawkins asks, humorously, how long they would last taking such an action? Ha.

10:24: Interesting exchange:

Judge Smith: Are they state officers performing state functions?

Tyler: No, they are local officers performing state functions.

S: How do I get around the language [in what I’m reading] that they ARE state officers?

T: They are performing state functions, e.g. marriage.

S: So they’re state officers if they do that?

T: I don’t know if that’s what the case turns on. This case turns on whether her duties will be altered as a result of this outcome of the case.

Reinhardt: Clerk is not attempting the court to get the ruling. In Lockyer, it’s the opposite.

T: In Richardson v. Ramirez, there were 3 clerks who were sued. SecState required registration by felons in order to vote. In that case, a local county clerk was able to take the case when there were no other defenders. Same thing here! We have a case where there is a county clerk wanting to intervene who will be affected by the outcome of the case.

10:18: Robert Tyler, arguing for Imperial County to have the right to have standing for representing the entire state. He is getting pressed hard by Judge Hawkins on whether the individual he is representing (the clerk in Imperial County) actually has the ability to act, which Judge Smith is appearing to concur with.

10:14: Brian Leubitz, P8TT’s legal analyst, sent in the following analysis:

Cooper: Looking at two standing issues. First, the big issue of whether the 9th Circuit, the standing issues that we’ve been talking about for a while now.  However, Cooper is interested in looking at the district court jurisdiction as well.

On the 9th Circuit: Cooper is looking at a New Jersey case that was decided before Arizonans for Official English.  The big question here is whether proponents of a measure have standing, and Cooper is asked as much.  His response is rather stunning:  “I don’t have a case to show Article 3 standing for proponents.”

Now, in Arizonans, Justice Ginsburg says that proponents do not have Article III standing, that is to say whether they have standing under the judiciary article of the Constitution.  Cooper is trying to avoid that comparison, by pointing to the prior New Jersey case (Karcher).  In Karcher, the Legislative officers were given standing.  As noted, Karcher was before Arizonans, so it must be read in context of Arizonans.

Cooper is pointing to the Strauss case in state court, where the proponents successfully defended Prop 8 in state court.  The California Supreme Court allowed proponents to defend Prop 8, but blocked other anti-equality groups from intervening, showing that proponents have special standing.

10:13: Cooper finishes and would like to reserve the balance of his time  for rebuttal, which is granted by Judge Reinhardt.

10:11: Cooper is asked if he sought to enjoin the case. He replies no. He notes that the NJ Attorney General declined to appeal the case (Karcher v. May), just as the CA AG (Jerry Brown, currently) declined to appeal. And yet the Supremes noted that the NJ legislative leaders did have the authority and were the proper parties not just in the trial court, but in the 3rd Circuit. He continues, when no one else would defend the statute in the Strauss case, the only party defending the constitutionality of the statute in Strauss were the proponents. In the marriage cases, at the court of appeals level, court of appeals denied intervention to a group that was not the official proponents, but made no ruling whether the official proponents in the default of the state officials would be authorized to come in and represent the state’s statute.

10:06: Cooper is asked if he knows of any California law that allows Article 3 standing. Cooper argues that the Strauss case is similar. Judge interrupts and notes that Strauss only talks about proponents as agents of a proposition, not as agents of the state, which defendant-intervenors are asked to do here. Cooper is being interrupted repeatedly and pressed hard to make the case that this case is similar to the ones he is citing.

10:03: Interrupted and asked to explain the case further, Cooper is asked for the “best case” example of a federal case re allowing proponents Article 3 standing. Cooper says he doesn’t have one, but this is the one he’s bringing forward.

10:00: Charles Cooper gets up to speak. He notes that the two “jurisdictional” issue at stake, as we all know, are (a) standing (b) constitutionality. With respect to the standing issue, he notes a Supreme Court case in which New Jersey state education officials were required to defend the moment of silence statute. The court allowed the Assembly speaker/Senate president on behalf of the legislature to defend the state’s interests on the statute. Supremes rejected the claim that they did NOT have standing. Reason is b/c NJ Supreme Court previously allowed the legislative officers to intervene on behalf of the legislature to represent the state’s interests in a redistricting case.

9:59: And here we go. Gavel and all rise.

9:54: Arisha writes in that about 20 members of the public who got up early enough were lucky enough to gain entrance into courtroom one to watch the historic hearing live. Evidently, some staunch equality supporters began lining up at 4 am to get a seat. Other hopefuls are being sent into several media overflow rooms
to view the hearing. As a reminder, you can watch on C-SPAN, the California Channel streaming online (which now has images of the scene Rick describes below).

9:39: Arisha writes in that there are six total attorneys for the plaintiffs (us) and three for the defendant-intervenors.

9:38: More on the scene inside the courtroom from Rick (for those of you who are wondering why the verbal description, they don’t allow photography inside the courtroom):

There are only four rows of pews here.  Unlike the courtroom of Judge Walker, which was larger, lighter and more modern—that 1960s light wood look—this one could be in Spain or Washington, DC.  The floors are one inch square mosaic tiles covered in most places by gray, short-nap carpet.  The wooden pews are stained in a mahogany, with fluted, low arm rests on either end.  The benches are much more comfortable than the ones in the Burton building.
There are only three people seated in the audience section behind the defendant-intervenor side, whereas our side is almost full.  The general public will now be admitted to the room to fill the remaining three pews on the defendant-intervenor side.  Interestingly, our side is on the left, theirs on the right. I’m sure that must be accidental. Regardless, it’s nice to see Ted Olson here on the left.

The pool TV cameras are situated at the front, facing the lawyers’ podium and in the back, over my left shoulder, facing the judges’ bench.

Over there is Jenny Pizer of LAMBDA Legal schmoozing with Cleve.  Behind me is Linda Hirschman, the brilliant author whose book about the history of the LGBT movement is being published by Harper Collins.  She’s still working on it, and it’s going to be terrific. There’s also Jo Becker, the NYTimes correspondent who, in her spare time, is writing a book chronicling the Prop. 8 Trial.

I have never been that excited by Hollywood celebrity and the like.  I don’t watch enough TV or see enough movies to identify with it all.  But I admit that I love this.  Having live-blogged the trial itself, knowing Ted Olson for so long, knowing Cleve and Lance and Bruce and Chad and now the plaintiffs and most of all, having lived through Prop. 8 with all of you, this is exciting.  It’s history.

With the change in political climate in this country, which I think the right-wing has misinterpreted, we see marriage under threat in New Hampshire.  We saw three judges be roundly rooted out in Iowa by NOM and its secret money slush fund.  But here, in the stained-glass skylight formal courtroom, justice is at work.  The slush funds don’t prevail here.

9:14: Another dispatch from Rick on what things are looking like inside: “We’re in the courtroom.  It’s a small room, with baroque, vaulted ceilings, oranate plaster arches that surround three deep hued mosaic images of the history of justice in this state.  Arisha and I are seated in the first two seats of the front row right behind the plaintiff’s family.

The entire gang is here:  we said hello to Ted Olson, whom I greeted with that “farewell” remark of my old friend Howard Baker, Jr:  “Don’t screw up.”  I think he won’t.

David Boies will begin for our side, followed by Ted. Ted Boutros, Chris Dusseault, Terry Stewart, Cleve Jones, Lance Black,  Chad Griffin, the sons of Kris and Sandy, the parents of Paul Katami in from New Jersey, and of course the four plaintiffs themselves are here.

Ron Prentice made a point of shaking my hand, saying “Good morning, Rick.”  I hope he’s right.

Andy Pugno won’t make eye contact, but there he is.  So far, his post-Prop. 8 record is unblemished by success.  He lost the Walker ruling. He lost his assembly race here in California.  So let’s hope his streak continues.

We’re sitting in front of Ryan Kendall, the witness who so eloquently told of his forced attempted “conversion” by NARTH, which you saw at P8TT.

Next to us are Judge Walker’s three clerks plus his wonderful administrator.

9:07: I’ve got photos rolling in from Arisha I’m starting to get up. Here’s Paul Katami, one of the plaintiffs, with AFER at a pre-trial presser:

AFER press conference

And crowds of marriage equality supporters:

Marriage equality supporters

Also, it’s our very own Kathleen along with Ann S. from the comments!

Kathleen + LLB from comments

And Alan!

Alan from comments

9:06: Rick sent in the following: We are in line now behind the plaintiffs and lawyers waiting to check in. A half dozen satellite trucks, a hundred or so at a demonstration for our side. A huge garbage truck just went by and fog horn honked in support of our side. Standing next to Imperial County lawyers who said, “we’re in a funny position. We’re defendants but we’re not part of the case.” To which another apparent lawyer said, “tell me about it. We’re here to uphold the law.

9:05 AM PST: A few more items of note before the trial starts in less than an hour.

  • If you missed yesterday’s preview of how things will proceed to today, you can find it here.
  • A few months ago in the period between the Walker ruling and today, we had NCLR’s Shannon Minter (who was the lead attorney on the original 2008 In re Marriage Cases, the case striking down restrictions on same-sex marriage at the California Supreme Court) and deputy Chris Stoll stop by to answer your Prop 8 legal questions on standing, appeal process, timeline, what strict scrutiny means, and more. If you’ve got a question about what’s coming up, you can probably find that question answered in the thread.
  • My colleague Chris also has some useful FAQ on potential outcomes.
  • The defendant-intervenor brief filed for this hearing can be found here. The response brief filed by Olson/Boies et al can be found here.
  • If you’re feeling nostalgic or want some feeling for how courtroom back-and-forth may go, you can read Prop8TrialTracker’s live-blogging of the original hearing with Judge Walker from inside the courtroom itself. All those threads can be found here. That was the trial that led to more than 4 million pageviews and 80,000 comments here.
  • Recalling that Judge Walker struck down Prop 8 on both equal protection and due process grounds, it’s worth recalling Judge Walker’s conclusion in his ruling as we enter this one: “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.” On due process: “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”

727 Comments December 6, 2010

The inconsistency of the Cuccinelli 13: Attorneys General demonstrate hypocrisy on DOMA, Prop 8 cases

Prof. Steve Sanders, an appellate lawyer and adjunct faculty member at the University of Michigan Law School, thought this piece he wrote for the American Constitution Society might be of interest to the P8TT community. It takes on the anti-equality amicus brief filed by 13 states and Attorneys General in the Prop 8 case, and contends that if these AGs were to be consistent, they would also be filing in support of Massachusetts in its challenge to DOMA. Cross-posted from ACS. — Eden

By Steve Sanders

Thirteen states have filed an amicus brief in Perry v. Schwarzenegger, the case in which the U.S. Court of Appeals for the Ninth Circuit will review a district court decision that struck down California’s same-sex marriage ban. The brief-submitted by the attorneys general of Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Michigan, Nebraska, Pennsylvania, South Carolina, Utah, Virginia, and Wyoming-argues that it is gravely important that states be allowed to continue privileging "traditional" marriage and denying equality to same-sex couples. One of the brief’s lead counsel is Virginia attorney general Ken Cuccinelli, a darling of social conservatives and the Tea Party movement.

The brief purports to offer an argument about marriage federalism-that every state should be able to carry out its own ideas without interference either from Washington or pesky federal judges. But as I’ll explain, these attorneys general — call them the Cuccinelli 13 — don’t really believe their own argument. They just want their states to be able to keep discriminating against gays and lesbians.

As you might expect from a group of mostly red states (11 of the 13 AGs are Republicans), the brief rehashes familiar social-conservative themes: marriage is about procreation; children are better off in heterosexual homes; it’s a slippery slope from gay marriage to legalized polygamy and incest; the "traditional" understanding of marriage should be constitutionally dispositive.

What’s interesting, though, is that the brief frames these arguments within a sweeping claim that states have "sovereign primacy over marriage." "Primary state authority over family law," they write, "is confirmed by definite limitations on federal power" and is a "bedrock principle of federalism."

Taking aim at the judge who invalidated California’s Proposition 8, the Cuccinelli 13 insist that "federal judicial power threatens to undermine state determinations of marital or parental status," and that the district court’s "fiat" (a silly characterization of a closely reasoned 136-page opinion) "exceeded its judicial authority." But this is an obtuse argument. The brief attempts to conflate the "domestic relations exception"-a judge-made abstention doctrine that deprives federal courts of jurisdiction over intrafamily disputes like divorce or child custody-with the power of federal courts to review the constitutionality of state laws. Faulty arguments aside, the Cuccinelli 13’s real point is that if states want to keep discriminating against same-sex couples, federal courts just need to butt out; they have no right to question majoritarian ideas – what the AGs call "the acquired cultural wisdom of citizens" – about marriage.

There are some ironies in the Cuccinelli 13’s defense of traditional marriage, as well as their invocation of children. One of the brief’s lead states, Indiana, was a notorious national divorce haven in the mid-19th century, offering non-residents a quick and easy way out of the marriages their own states, in their "sovereign primacy," had created. More recently, another lead state, Louisiana, has argued in the Fifth Circuit, in a case called Adar v. Smith that it may refuse to recognize the parent-child relationship of a Louisiana-born child and the same-sex couple who adopted him in a New York court. Louisiana’s position would effectively render the child an orphan in the eyes of its law. But such is the price Louisiana says must be paid for its right to denigrate the legal relationships that other states, in their own "sovereign primacy" over family law, have created.

The Cuccinelli 13 purport to honor the classic federalism principle that "individual states" should be allowed "to experiment with novel social or economic arrangements" like same-sex marriage on their own terms. But in fact, none of these states actually believes in that sort of marriage federalism. We know this because their own laws do not respect the sovereignty of other states — Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, along with the District of Columbia — that currently license same-sex marriages.

A defining characteristic of American family law is that a marriage created in one state (assuming the couple was domiciled there at the time) will presumptively be recognized in all states. This common-law rule provides for certainty in legal relationships; prevents the casual evasion of marital obligations; and respects the rights of the state where the marriage was celebrated. In other words, while creating a marriage is a core incident of state sovereignty, recognizing a sister state’s marriage is simply the price of living in a federal system. Any other understanding would create an absurd regime where states could effectively nullify each others’ marriages, and couples’ marital status could change every time they crossed a state line. While you expect to have to apply for a new driver’s license when you move from one state to another, who expects to apply for a new marriage license? (As I have argued elsewhere, it is time for courts to recognize a liberty interest under the Due Process Clause that would prevent states from undoing marriages they simply don’t like.) In a highly mobile society like ours, a Des Moines same-sex couple who can count on their marriage being recognized only so long as they never leave Iowa does not have what most Americans would recognize as a marriage.

Yet that is the world the Cuccinelli 13 believe we should live in. All their states refuse to give effect to the relationships of legally married same-sex couples who relocate from someplace else. You’ve come into our territory, they say, invoking the antiquated "public policy exception" to the rule of marriage comity, and so we get to redetermine whether you’re actually married. For the Cuccinelli 13, "sovereign primacy" over marriage means not only insisting upon their own "traditional" ideas about marriage, but also denying respect to marriages that were created by other sovereigns with different ideas.

While the Ninth Circuit prepares to deal with Perry, less attention is being paid to a case on its way to the First Circuit: Massachusetts v. Health and Human Services, a challenge by the Bay State’s attorney general, Martha Coakley, to the federal Defense of Marriage Act (DOMA). While the Cuccinelli 13 intone about their "sovereign primacy" as a way to fend off judges who might stop them from discriminating against gay people, the Massachusetts case really is about who gets to define marriage, the states or the federal government.

A little background: DOMA, passed in 1996, creates a federal definition of "marriage" (one man, one woman) and forbids recognition of same-sex marriages for any federal purpose. As a consequence, it penalizes states that honor such marriages. Massachusetts loses millions of dollars in federal funding for programs ranging from Medicaid to veterans’ cemeteries because, while its state agencies recognize same-sex spouses, the federal government will not.

In July the Massachusetts district court ruled that DOMA violates the Tenth Amendment, which says "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." With DOMA, the court said, the federal government had arrogated to itself a power reserved to the states: the power to say who is married and who isn’t. DOMA thus overturns the "historically entrenched tradition of federal reliance on state marital status determinations."

Much of the district court’s opinion reads like the Cuccinelli 13’s brief in Perry. "[M]arital status determinations," it says, "are an attribute of state sovereignty," and "the field of domestic relations was regarded as such an essential element of state power that the subject of marriage was not even broached at the time of the framing of the Constitution."

The Cuccinelli 13 should, of course, enthusiastically embrace this holding. Were they to be principled, they would at this moment be preparing an amicus brief in support of their sister state Massachusetts as it attempts to ward off DOMA’s illegitimate exercise of federal power over marriage. After all, they say in their Perry brief that "even the broadest conception" of the federal government’s powers "forbids any possibility that Congress could regulate marriage." Moreover, the Tenth Amendment has traditionally been a favorite of legal conservatives. Cuccinelli has made himself a hero of political right by waging a high-profile lawsuit against the Affordable Care Act, the Obama administration’s landmark health care reform law, arguing that its individual mandate violates — you guessed it — the Tenth Amendment.

Of course, the Cuccinelli 13 are unlikely to link arms with Massachusetts. Given the choice between a consistent position in favor of states’ rights over marriage, or a consistent position against recognition of same-sex marriages by any level of government, it is predictable that they will choose the latter. Their real concern is the primacy of their definition of marriage. Just as the "acquired cultural wisdom of citizens" is a poetic euphemism for discrimination, the "sovereign primacy" of states is just another way of saying that federal courts adjudicating claims to rights and equality should buzz off.

44 Comments November 1, 2010

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