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BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights (NCLR) Attorney Shannon Minter.
By Shannon Minter, Esq.
National Center for Lesbian Rights Legal Director
Today was the long-awaited oral argument at the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, the federal court challenge to Proposition 8. 
The Ninth Circuit is the federal appeals court that covers California. Today’s argument was heard by a panel of three judges, who will decide whether to uphold District Court Judge Vaughn Walker’s August ruling that Prop 8 is unconstitutional.
The argument ran for almost two and a half hours, covering two basic questions:
• Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case-have the right to appeal Judge Walker’s ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have “standing” to appeal.• Second, is Prop 8 unconstitutional?
It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today’s argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue. In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.
Some of the panel’s questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.
In the second hour, on the constitutionality of Prop 8, the panel’s questions focused on two general areas: the unique circumstances under which Prop 8 was passed in California — where same-sex couples had the right to marry before Prop 8 stripped that right away; and the principle established by the U.S. Supreme Court in their 1996 decision, Romer v. Evans, that a state cannot deliberately discriminate against gay people just to send a message that they are inferior.
At least two judges seemed critical of the argument that Prop 8 can be justified based on arguments relating to procreation-which was the central defense offered by the proponents’ attorney Charles Cooper. Repeatedly, the judges pressed Cooper on how procreation could possibly justify Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples, and has affirmatively embraced same-sex couples as equally good parents.
Arguing on behalf of the plaintiffs, former U.S. Solicitor General Ted Olson urged the court to reach the broad question of whether same-sex couples have a fundamental right to marry under the U.S. Constitution. In an argument that complemented Olson’s, Therese Stewart, Chief Deputy City Attorney for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”
Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is “animus,” or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on “animus” does not have to mean that the voters intentionally sought to harm gay people. Rather, unconstitutional “animus” can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.
Together, Boies, Olson and Stewart were a great team and did a phenomenal job of presenting the most powerful arguments for upholding Judge Walker’s decision. There is no specific timeline for the Ninth Circuit panel to issue a ruling, but they have expedited the case up to this point, and we may see a decision with a few months. In the meantime, unfortunately, same-sex couples in California will have to continue to live under the state’s separate-but-equal system that designates our families as second-class.
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Related:
* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 10
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 11
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 12
* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial
* NCLR Analysis: Closing Arguments For Perry v. Schwarzenegger
* NCLR Analysis: Perry v. Schwarzenegger Ruling
8 Comments
Among all the weirdness of the Prop 8 supportersone fact struck me: Why on earth are they still using Chuck “I don’t know” Cooper? For most of the proceedings he sounded like a slick-talking con man trying not to get nailed down. And we all know that in the original trial his admission that he didn’t know how gay marriage would affect straight marriage was a major blow to their side. Is it possible there isn’t a better lawyer willing to argue for their side?
One moment in particular jumped out at me. It was when Cooper, just a few minutes into the trial, admitted, “I don’t have a case.” I know he was talking specifically about a case precedent to bolster his argument about standing, but it still had me whooping with laughter.
Excellentwrap up. I watched the whole thing. As a lay person I missed some of the point especially the “animus” argument by Stewart. Thank you.
Actually I think Cooper did fine given what he has to work withCompare him to the Imperial County attorney, for example. But I think is just goes to show how weak their case is that really even the best lawyer would have trouble. The Prop 8 people have to resort to a smoke and mirrors sort of approach because to the extent they get pinned down to a particular theory, it becomes very easy to attack. So we get “It’s about procreation” “It’s not about procreation” “It’s just a word” “There’s more to it than just a word” etc.
One thing I notably liked about Ms. Stewart’s arguments is that I heard the most direct and forceful counter to the “procreation” theory: with assisted reproductive technology, gay and lesbian couples can procreate just like heterosexual couples who have to utilize such procedures. The most conservative judge on the Panel (Smith) seemed inclined to support the idea of “marriage” as being for procreation; this was undermined consistently throughout the hearing. Smith also seemed to buy into the belief that children raised by heterosexual parents gain a benefit over same-sex couples but he’ll have to ignore Walker’s evidentiary record to put that into a ruling or dissent. While a 2-1 opinion seems most likely, a 3-0 ruling would not be that surprising.
On the downside, given all the focus on Romer v. Evans, that the Panel may be headed for a narrow ruling that only returns marriage equality to CA.
On the upsideSuch a narrow ruling would almost certainly survive SCOTUS and would be a strong legal shield for current or future states that start allowing gay marriage (by legislative or judicial action) but that subsequently come under attack by NOM, etc.
The Prop 8 argument =Because heterosexual couples cannot be expected to be held responsible for “the possibility that an unintentional and unwanted pregnancy” may occur, heterosexuals should have the exclusive right to marriage.
Judge Reinhardt then says ” Sounds like a good argument to prohibit divorce.” Everyone laughs.
Seriously, no gay marriage because straight people cannot be expected to be responsible for their own reproductive processes.
The biggest problem I see with this is that OBTFW it ain’t workin’. Man and woman marriage is the law of the land in most states and it hasn’t kept straight people from popping out babies out of wedlock.
Such a narrow rulingmay also give rise to challenges of domestic partnerships in the 9th District. Nevada, Oregon and Washington also offer varying degrees of protections to LGBT under “inferior, second class” domestic partnerships. Washington, in my opinion, would have the strongest case for the name “marriage” as their DP law offers all the benefits and responsibilities as marriage, without the name, the same as currently with California DP’s.
ExactlyAs does the new IL law, no? Not in the 9th district but I assume, even with a narrow ruling, the Prop 8 people will take it to SCOTUS. There would be a nice irony in the fact of the bald bigotry that led to Romer v. Evans might indirectly be responsible for one of the more powerful avenues to establish marriage equality one state at a time, nationwide.
SCOTUS may refuse Certiorariif the pro Prop. 8 group appeals. There is no rational basis for SCOTUS to reverse their opinion of standing in Arizonans for Official English v. Arizona, other than to be “activist judges.”
As much as I would like to see SCOTUS rule that marriage is fundamental right for everyone in the U.S.. the reality of that occurring with the current Court is very slim. Second class is never acceptable, but incremental progress is much preferable to decades of set backs..
With a narrow ruling in California, Washington is nearly a slam dunk. Marriage will be very persuasive for Nevada and Oregon in the 9th District as well as Illinois in the 7th District and New Jersey in the 3rd District. All are very probable wins. The dominoes are falling, although not as quickly as we would like.