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Prop 8 Appellate Arguments to be Televised (Probably)

All over the gayosphere this evening was the news that oral argument on Prop 8, set for December 6, is to be televised. The Ninth Circuit issued an order allowing the full two hours of argument to be broadcast.

You’ll probably recall that the proceedings in the court below had been approved for telecast, too — until SCOTUS stepped in with some trumped-up reasons for reversing that determination (by an ominous 5-4 decision). Technically, at least, the Court’s ruling was based on the lower court’s failure to follow the rules for approving broadcasting, so assuming that these rules have now been followed (sheesh, let’s hope so!), I don’t expect the Supremes to weigh in again — at least not for now.

The two hours are to be divided equally between procedure and substance, and that’s telling all by itself. The first hour will focus on the quite serious standing issue; since the State of California has declined to appeal its loss, there’s strong Supreme Court language suggesting (though by no means stating unequivocally) that the intervenors supporting Prop 8 don’t have standing to lodge the appeal. The case might or might be complicated by the alleged interest of county officials, though. Can they defend the law even if the state won’t? It’s quite possible, for the reasons set forth in this clear, and excellent post. It’s also possible that the whole case could be thrown out on this basis: If the intervenors don’t have standing to appeal, why then did they have standing to sue? (The post also discusses this problem expertly). If the court finds no standing for this reason, then the suit would have to be refiled — but would have no defenders (since the newly elected Governor — who’s also the former AG — believe that Prop 8 should die.

OK, standing isn’t the best topic with which to debut Prop 8 Court TV, but it will get more interesting for non-lawyers from there. They will rouse themselves from a deep, coma-like sleep once the argument moves to the serious constitutional issues. I hope enough people are watching for word to spread, far and wide: The Prop 8 proponents have little to commend their position. As David Boies has memorably stated, once the issue moved out of the public square where anything can and will be said — support or logic be damned — and into the courtroom where actual arguments are needed to sustain the ban against same-sex marriages, the emperor stood revealed.

Don’t expect anything to happen soon, though. Whatever the court decides, an appeal to the court en banc (which usually means all judges on the appellate court, but is constituted by fewer judges in the Ninth Circuit given the court’s sheer size) is inevitable. Then, on to the Supreme Court, in all likelihood — whether on standing issues or substance, it’s too early to say.

But the public will get a rich sense of the injustice of the law’s exclusion of same-sex couples from the dignity and legal recognition of marriage. For that, we can thank the court’s sensible decision to allow this broadcast.

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