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Prop 8 Trial Oral Arguments Take Place at the Ninth Circuit

A 3-judge panel of the Ninth Circuit hears arguments in San Francisco regarding the appeal of Judge Walker’s decision striking down Prop 8.  The three judges on the appellate panel are Michael Hawkins, a Clinton appointee, N. Randy Smith, a George W. Bush appointee, and Stephen Reinhardt, a Carter appointee, and one of the most liberal judges in the circuit.

In the hearing, the most significant question at the outset pertains to the standing, or authority, of the proponents of Prop 8 under federal law to appeal Judge Walker’s decision.  The original lawsuit filed by AFER on behalf of the two couples named then-California Governor Arnold Schwarzenegger and Attorney General Jerry Brown as its defendants, along with several other state officials.  (The case was later called Perry v. Brown because Gov. Brown succeeded Gov. Schwarzenegger.)  Schwarzenegger and Brown declined to defend the lawsuit in court, so the proponents of Proposition 8 ( filed successfully to join the suit as what are called intervenors — people who are not official parties to the case but feel the outcome of the case would affect them.

During the course of the trial, Judge Vaughn Walker cast doubt on whether the proponents of Prop 8 had what is called ‘standing’ to appeal any decision he made in court.  In federal courts, standing is determined according to the prescription laid out in Article III of the U.S. Constitution, and parties must be able to satisfy three requirements showing 1) they will suffer particularized injury if the decision is not overturned, 2) there is a causal connection between this injury and the actions of the other side and 3) a court decision in their favor could redress the injury.

At its hearing, the 3-judge panel of the Ninth Circuit assigned to the Perry case spends the first hour of argument questioning the proponents’ standing, asking whether they can demonstrate how the striking down of Proposition 8 causes them immediate harm.  (Essentially, it is not enough to say striking down Prop 8 would harm marriages in general, because that does not show particularized injury.)

Charles Cooper, arguing for the proponents, cites a Supreme Court case (Karcher v. May) as precedent in which the Court allowed New Jersey’s legislative leaders to defend a state statute.  He also cites a California Supreme Court case (Strauss v. Horton) in which the proponents of Prop 8 were allowed to defend the statute over other anti-marriage equality groups who were not the law’s official proponents.  David Boies, arguing for the plaintiffs, makes the case that only the Governor, Attorney General or legislature are the proper “respondents” to appeal Judge Walker’s ruling, and that the proponents are caused no particularized injury by the repeal of Prop 8.

In the second hour of arguments, pertaining to the constitutionality of Prop 8, Charles Cooper argues that Prop 8 should be considered under a rational basis measure, which requires any rational governmental purpose for a law to survive.  Cooper, once again, points to the procreation argument, and says that marriage equality redefines the institution of marriage.  In essence, his argument boils down to the importance of the word ‘marriage,’ with Cooper arguing that the state can reserve that classification for straight couples only.

Ted Olson, arguing for the plaintiffs, makes the case that taking away rights only from gays and lesbians discriminates against them based on sex and sexual orientation, especially because of the Supreme Court’s decision in Lawrence v. Texas, which protects gays and lesbians’ sexual activity under the Constitution’s guarantee of privacy.  He argues that Prop 8 should be considered under a so-called “heightened” rational basis test, and that the reason must come from the facts of the case, not from a court’s (or lawyer’s) speculation.  “California has taken a class of citizens and put them in a separate category,” he says, “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.”

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