SAN FRANCISCO – Both sides in the Proposition 8 appeal took turns arguing whether the California ballot measure was unconstitutional, during the second hour of today’s hearing at the Ninth Circuit Court of Appeals.
Theodore Olson, part of the “dream team” of David Boies et al, argued that the passage of Prop. 8 “took away rights” from a group of California citizens and thus the state law was unconstitutional.
Olson said more than 1 million gays and lesbians in California had their rights taken away from them by the passage of Prop. 8. He noted that about 18,000 gay and lesbian couples got married during the window when gay marriage was legal in California, but that the rest of the gays and lesbians in the state were now denied the same opportunity.
“California has built a fence around gays and lesbians … and that is a violation of the Equal Protection and Due Process clauses,” Olson argued.
Charles Cooper, attorney for Prop. 8 supporters, kept hammering away that the court should defend traditional marriage and its procreation intent.
Judge Randy Smith, the Mormon conservative who was appointed to the Ninth Circuit Court of Appeals by Republican President George W. Bush, asked Cooper to explain “rational basis” for keeping Prop. 8 intact.
Cooper said it was to “preserve the institution of marriage as we know it … for the natural procreation capacities of men and women.”
Judge Stephen Reinhardt, the “liberal lion” of the Ninth Circuit, and moderate Judge Michael Hawkins asked thoughtful questions about the Aug. 4 ruling by federal Judge Vaughn R. Walker that Prop. 8 was unconstitutional. Both asked each side about the what the scope of their ruling should be.
During the first hour, which was devoted to the issue of legal standing by those who filed the appeal, the judges seemed skeptical that the attorneys for the gay-marriage opponents had the right to appeal Judge Walker’s ruling.
Judge Reinhardt deftly got Cooper to admit that Cooper knew of no federal law that supports his position on the legal standing issue.
The judges shredded the arguments by Robert Tyler, a lawyer representing Imperial County, who contended that the county should be allowed to intervene in the appeal and defend Prop. 8.
The judges pointed out that Tyler’s client was a deputy clerk of courts in Imperial County and did not legally represent the county, much less the actual Clerk of Courts. They had Tyler’s so flustered that he provided often conflicting arguments.
David Boies, representing opponents of Prop. 8, fared better during the questioning and had answers to penetrating questions and was able to cite court law to support his contentions that the opponents did not have legal standing.
Should the panel decide that the appeal has no merits due to lack of legal standing, then Walker’s ruling would stand.
Freedom to Marry official reacts
“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,” said Evan Wolfson, executive director of Freedom to Marry.
“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,” he said.
“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.’
“This was the year in which the freedom to marry came to our nation’s capital and polls showed for the first time that a majority of Americans nationwide now support ending gay people’s exclusion from marriage. Just last week, the Illinois legislature moved in the direction of marriage equality with the enactment of a civil union law, and now 17 states have marriage or some statewide recognition of same-sex couples on the road to the freedom to marry, up from virtually zero just a decade ago. With gay people free to marry in 12 countries on 4 continents and the sun still rising every day, 2011 looks bright for continued momentum toward ending marriage discrimination,” Wolfson said.