HRC Blog

Ninth Circuit Hears Oral Arguments in Prop 8 Case

Yesterday, a three judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in Perry vs. Schwarzenegger — the case challenging Proposition 8, California's constitutional amendment that stripped same-sex couples of marriage equality in 2008.  As you'll recall, in early August, a federal district judge in San Francisco, Vaughn Walker, ruled that Prop 8 violates the equal protection and due process guarantees of the U.S. Constitution.  The proponents of Prop 8 appealed and yesterday's hearing was the next major step in the case's likely path toward the U.S. Supreme Court.  At issue at oral argument was not only the constitutionality of Prop 8, but also the issue of whether the pro-Prop 8 groups even have standing to appeal the case, when the State of California has refused to defend the law any further.

The panel -- composed of Judges Reinhardt, N. Smith and Thomas -- first heard arguments on the standing issue.  Without the State of California as a defendant, the proponents of Prop 8 must demonstrate that they have the legal ability to continue to pursue an appeal of Judge Walker's decision.  In addition to arguments on that point from Charles Cooper, we also heard from an attorney representing Imperial County and its deputy county clerk, who is also seeking to be able to appeal the trial court decision.  The panel seemed particularly suspicious of Imperial County's arguments, noting that the deputy clerk appears to simply perform a ministerial duty -- she issues licenses to individuals who the state determines are lawfully able to marry.  Much was also made of the fact that it is the deputy clerk -- not her boss, the county clerk -- arguing that she has standing to join the suit.  Arguing in response, plaintiffs' attorney David Boies explained that standing requires a party to have a personal, concrete and particularized injury, none of which seem to be present in this case, for either the original proponents of Prop. 8, or the deputy county clerk responsible for issuing marriage licenses.

The second question addressed in the hearing was, of course, the constitutionality of Prop 8. Charles Cooper rehashed the same rationales for limiting marriage to heterosexual couples that was thoroughly dissected and soundly rejected in the trial and lengthy decision from Judge Walker.  Cooper argued once again that the “ancient and ubiquitous” institution of marriage is one that the people of California decided should be limited to a man and a woman, to which Judge Thomas pointedly asked, “Could the people of California vote to segregate the schools?” Cooper concluded his statement with a few lines about the importance of marriage for the health of society, after which Judge Reinhardt remarked that Cooper’s argument sounded more like an argument against divorce than in opposition to marriage equality. Ted Olson, joining David Boies on behalf of the plaintiffs, once again offered forceful arguments against Prop 8.  He focused on the fact that, by adopting the amendment, California had "engraved into its constitution" discrimination on the basis of sex and sexual orientation and stripped over a million gay and lesbian Californians of a right the Supreme Court has determined to be one of the most fundamental rights: the right to marry.  But beyond revoking the right to marry from a class of people who once enjoyed that right, Olson argued that marriage is a fundamental, individual right. To prevent the exercise of such a right based on immutable characteristics is simply something the U.S. Constitution cannot tolerate. The Ninth Circuit panel will now deliberate and issue a decision, but that is not expected for several months. 

Whatever the outcome, the case may be reheard by a larger panel of the Ninth Circuit, known as an en banc rehearing, and eventually appealed to the Supreme Court.  Once again, we thank the American Foundation for Equal Rights; David Boies, Ted Olson and their legal team; and the courageous plaintiffs for continuing the fight for marriage equality in California.  Stay tuned for further developments. A special thanks to Jessie Singleton for contributions to this post.

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