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LIVE BLOG NOW: Culhane on Prop 8 trial

December 6th, 2010 Leave a comment Go to comments

Welcome to the live-blog of the Prop 8 appellate argument! This should be an interesting afternoon.

The feed from the argument should be up soon. Standing will be the first issue addressed. The court’s questions might suggest whether the judges think that the intervenors — including a county within California — have standing to appeal. As you’ll hear, a statement by Supreme Court Justice Ginsburg in a case with a similar standing issue suggests that the answer might be “no.” But does anyone really think that there’s no “case or controversy” to be decided here?

Attorney Cooper, for the Prop 8 proponents, is now making the point that courts are likelier to find standing for intervenors when (1) no one else is going to defend the law; and (2) the proposed intervenor is the official proponent of the proposition. He notes that the question whether the official proponent would have standing when the government won’t defend the law has expressly been left open. He’s now done, and it’s clear there was a great deal of skepticism over standing expressed.

Now the attorney for Imperial County — which belatedly sought to intervene after the state declined to appeal — is being subjected to a withering battery of questions by two of the judges — about the authority of the deputy clerk to act as an agent of the principal; an authority, which, it seems clear, is lacking. The attorney is trying to get around this by noting that the law affects her directly — because she’s under the authority of the state registrar. And now the judges are trying to rehabilitate the attorney by saying, “Well, maybe she thinks she’s bound and fears being in contempt of Judge Walker’s order if she doesn’t issue a license.”

Are they state officers? Tyler suggests that not much turns on that, because the question is whether she can carry out her duties. Judge Smith: If her duties are purely ministerial, then controlling precedent suggests she doesn’t have standing. Tyler comes back to the strongest, most sensible argument the Prop 8 side has on standing: This woman doesn’t know what to do, and no one from the state is defending this to get the point settled.

{lost the blogsite for a few minutes}

This standing argument for the Proponents has been a disaster, especially for Imperial County. Summary: The clerk didn’t appeal; the deputy did. No one knows why, and this doesn’t sit well with the court. And the attorney didn’t impress the court by not knowing whether the county clerk is appointed or elected.

Now David Boies is up. He’s taking some early softball questions from the bench, in which they all seem to agree since the clerks aren’t the subject of the injunction; therefore aren’t bound by it; therefore have no right to challenge the law. But what does Ms. Vargas — the deputy clerk — do? Can she ignore the injunction? This resulted in a highly confusing — at least for non-lawyers (and for anyone who’s not an expert in the intricacies of California procedural law) colloquy about how the state court would resolve the issue of the deputy’s conduct. Reinhardt: So who’s bound by the injunction? Boies, now warming to the argument, says that all of the clerks are bound since the issuance of a marriage license is a ministerial act. So it doesn’t matter so much which counties, or actors, are directly involved (either by being named in the suit or by questioning it, as Ms. Vargas has).

Can the state actors (governor and the attorney general) just indirectly nullify the will of the people by not appealing an adverse decision? Isn’t that the same as simply refusing to enforce it? Boies: No, they enforced it while it was in force. It’s not the same thing. Reinhardt counters: But the state didn’t even really defend this at trial. Isn’t this the same as allowing the governor a direct veto? Hawkins: But the Supreme Court has rejected just this argument in the Arizona case involving “English-only.” (Hawkins noted that both he and Reinhardt had taken the opposite view but were contradicted by the Supremes.)

Now they’re on the Supreme Court case: Is there a California law that lets the Prop 8 intervenors appeal? If we don’t know the answer, shouldn’t we ask the California Supreme Court the question? This is a procedure known as a certified question, whereby a federal court asks a state court for an answer on a question of state law. The state supreme court doesn’t have to take the case, but Judge Reinhardt seems to think that asking the CA S Ct to answer it would be a good idea. This is an interesting twist.

Boies is trying to avoid this result, by noting that even if being an official proponent is necessary, it’s not sufficient to confer standing (citing another U.S. Supreme Court). He says that these proponents don’t have the kind of particularized injury needed, under the federal constitution, to confer standing. This is important: Even if there is a grant of jurisdiction, say by the state here, that wouldn’t be sufficient for standing because the federal constitution trumps. And, again, they haven’t the kind of interest that confers standing.

This relates to the substance of the argument, I think: They lack particularized injury because they have nothing at stake, unlike those whom Prop 8 injures — the same-sex couples who can’t marry. I’ll have more on this, later.

Now Judge Hawkins is saying: Doesn’t it make sense to bring the standing and merits together to get these inextricably bound issues resolved at the same time? Citing Supreme Court precedent, Boies says: “No. There has to be standing first. There are important constitutional reasons for this requirement. We need to resist the temptation to go right to the merits.” (I’m paraphrasing.)

Boies now, very belatedly, brings up the Registrar, who is a defendant, and who creates the marriage license forms. Judge Smith then asks how the clerk could bring any appropriate case, since she is just acting in a ministerial capacity? Boies takes this, and notes that neither the deputy nor the “real” clerk has any standing to contest what they’re being asked to do.

He then closes with another strong statement: We need standing, and these concerns exist in every standing case. Reinhardt cuts off his peroration to ask: Since those who serve under those bound by an injunction are also bound by it, don’t they have a right to appeal? Yes, but they’re not acting in concert or at the behest of anyone bound by an injunction.

Now Charles Cooper strides to the podium for rebuttal, and picks up on Judge Reinhardt’s statement that the S Ct precedent doesn’t foreclose standing. The California Supreme Court allowed proponents standing in the first Prop 8 case, and that should be enough. If not, then he asks the court to certify the question to that same court.

Now they’re taking a ten-minute break.

Will the court find standing? My guess is that they will. The argument is a close one, based on state and federal precedent, but the court might feel that prevailing state law suffices for standing. It’s also quite possible that the court will punt the issue to the California Supreme Court. That, at least, would slow the case down — and that seems to be something that many judges (though not Judge Walker) want to do.

This would be a good time for questions, as I have a few minutes before Part II.

OK, we’re resuming….on substance.

Cooper is up first and contextualizes the case as part of an on-going national debate. The question, as he states it, is whether this is for the people to vote on, or whether the Constitution takes it out of the people’s hands. Yep, that’s about it.

Here we go on a 1970’s case, Baker, in which the S Ct refused to hear the appeal of a same-sex marriage case for lack of a “substantial federal question.” Is this precedent? How binding? The Court didn’t (really) rule on the merits. Justice Kagan said, accurately, during her confirmation hearings, that such decisions are entitled to some — but not too much — deference.

Now the judges and Cooper are back and forth on whether there is a rational basis for the law excluding gays and lesbians for marriage. Cooper is going on about the rationality of traditional marriage, but not about why same-sex couples are excluded from it. He’s going on about the accidental procreation argument — we care about marriage as it makes it likelier that a father will stick around. Reinhardt doesn’t let this go unchallenged: That sounds like a good argument for prohibiting divorce, but how does it relate to prohibiting same-sex couples?

Cooper: They can’t procreate, but opposite-sex couples (OSCs) can do so accidentally.

Judge Smith: But wait! California law gives “hoo-mo-sexual couples” all of the rights, but not the word. What is the rational basis for that?

Cooper: By redefining the word, you change the institution. You can’t separate the two. The name is the instiuttion. Will it be redefined as a genderless institution?

Hawkins: Why isn’t this controlled by Romer (v. Evans)? Same-sex couples had a right that the people took away, same as in Romer. (That’s the 1996 S Ct case where a Colorado initiative that took away rights from gays and lesbians.)

He seems very interested in this case, and finds the two cases to be closely analogous: These are both initiatives that showed anti-gay animus, and this, the S Ct said in Romer, Colorado cannot do. Cooper is trying to separate them by saying the voters were just trying to reaffirm the traditional dfn of marriage. No animus here.

Hawkins quotes Romer: “The Constitution neither knows nor tolerates classes among citizens.” Why doesn’t Prop 8 do just that?

Cooper: As Justice Kennedy said there, homosexuals were rendered strangers to the law in almost every way. This is quite different, barring same-sex couples (SSC) only from an institution that can make a distinction based on truly distinguishing characteristics.

Now Hawkins throws out a question to get Cooper back to his Baker argument: There wasn’t a substantial federal question then and there isn’t now, as seven other federal courts have reached the same conclusion. But Reinhardt: But Baker was before Romer and Lawrence (the case that overruled Bowers v. Hardwick and held that the state can’t forbid private sexual conduct among consenting SSCs). And here we’re taking away a right to marry that the court had already found.

But Cooper: The people, under California law, do have the power to amend their state’s constitution. Reinhardt is having none of it, though: Is there a valid reason to amend it? Could the people vote in segregation?

Cooper tries to sidestep this by saying that this would fail under the federal constitution. And this case is the same whether the California Supreme Court had spoken before Prop 8 or not; this case isn’t about the relation between the California court and the enactment of the proposition.

There’s lots of back and forth as to whether the case would be different if it didn’t involve a right that was given and that taken away.

Now Hawkins: Would the case be the same if Prop 8 had also taken away civil unions? (Actually, they’re domestic partnerships in California.) Cooper stammers. Then Hawkins: What if they’d added: “And we don’t want same-sex couples visiting dying loved ones in the hospital?” Would that be OK? Cooper says: Yes, as long as they don’t run afoul of the federal constitution.

I’m a bit surprised by all of this focus on the particulars of Prop 8 and Romer.

Now Judge Young is moving away from this and asking a different question: Doesn’t the case get harder to deny SSCs a right to marry on a rational basis analysis when they’ve gone so far as to grant “virtual equality”? I think it does, and I’ve made this very point in a recent article. (Will link later.) Cooper doesn’t accept this, calling it perverse. But Young won’t get away from it: When California has gone as far as it can, what’s the rational basis left for differentiating? Is it “marketing” OSCs. Cooper sort of says yes: It’s to recognize the unique status of marriage as a procreative union between men and women — to market that, if you will.

He goes on from there back to the accidental procreative argument. SSCs don’t represent the same vital interests, at least not in the same way.

Young: Do you think this would survive the more searching “rational basis” test that Justice O’Connor pointed to? Cooper misses the point and goes to higher scrutiny, which he concedes is a harder standard to satisfy.  Then he goes on about infertility and the difficulty of proving it, not exactly responding to the question.

Here comes Ted Olson, for the plaintiff/appellees:

Starts by noting that Prop 8 stripped gay and lesbian Californians of the fundamental right to marry.

Reinhardt: So it does matter?

Olson: Yes and no. Citing a Supreme Court case, he says it makes it worse. The constitutional deprivation is worse when the right was granted and then removed. This, I think, is a point about which most people — even those who support Prop 8 — would agree.

He then goes into the fundamental right to marry, and notes that the S Ct has never said that the right to marry is limited to OSCs. It’s a right fundamental to liberty.

This isn’t about “gay marriage” any more than Loving v. Virginia was about the right to “interracial marriage.” Both are about the right to marry, full-stop. They can’t take this away from same-sex couples any more than they could take it away from straight couples by saying: “Oops. Too many people. Let’s discourage procreation.”

Reinhardt is desperately trying to look for a narrower way to resolve the case. Olson says: You need to go no further than Romer; taking away the right violates even a rational basis-level test. Now he goes into Lawrence, and tries to tie this to the fundamental right to marry. Marriage is a right of all citizens, these cases — taken together — establish. Can’t be taken away as it’s discrimination based on sex and sexual orientation. And even under a rational basis test, it fails. They’ve flailed at finding a rational basis. First it was to protect the kids from the idea that gay marriage is OK. But what would be bad about this? They’ve all but abandoned this now, inhuming it deep in the brief (pages 106-108). Olson exhumes it and demolishes it — if we’re worried about making kids think about sex too soon, we’d also ban: comix (shudder!); video games; conversations with other kids. (Laughter.)

I think this court is going to stick to rational basis; a smart idea, precedentially speaking, since the S Ct has never held sexual orientation to be a suspect class that triggers higher scrutiny. And the questions are entirely about rational bases, or their lack. So there’s talking about facts, which is refreshing! Olson takes on the “accidental procreation,” noting that letting SSCs marry has no effect on this at all.

Oh, oh: Now Judge Hawkins is talking about legislative facts – what the legislature (in this case, the people) thought was the basis. Olson says that this is a way of getting around all of the witnesses and basically reducing the impact of the trial, which went into detail about the effect of the denial of equality on SSCs.  But even if we do want to disregard the whole trial, there still needs to be something behind the discrimination.  Young tries to find a rational basis – kids need a father and a mother, and we should have a way of distinguishing marriage from domestic partnership.

What about that?

Olson: The witnesses that came forward talked about what marriage meant to them. And there’s nothing that would suggest that kids in fact thrive in a better way in that environment, and in fact the proponent’s witness, David Blankenhorn, admitted that kids did well with same-sex parents. So how does keeping the kids of those parents from marrying help heterosexual marriages? Keeping them out doesn’t change how the kids in a home headed by a SSC will be raised.

Now Reinhardt, at last, gets to whether this court could use a heightened scrutiny standard. What do the circuit’s precedents say? Summary for non-lawyers: There’s a way to use a higher scrutiny, but the court might fear that the U.S. Supreme Court would reject that approach. And if it did, the case could go spiraling all the way back down to the trial court.

Reinhardt: Isn’t the question just whether Prop 8 was unconstitutional? Do we have to go as far as you want, and say that keeping gays and lesbians from marrying is always unconstitutional? Can we even go as far as that, given that we’re supposed to decide cases on the narrowest ground?

That seems like what Reinhardt wants to do. And Olson takes what’s offered; you can decide this narrowly – based on Prop 8’s taking away a right that the California Supreme Court had declared fundamental, and on Romer v. Evans warning against fencing out a class of people.

Olson clearly wants a broad ruling; otherwise, he’ll be less famous.

He’s gone and now there’s one more attorney for the appellees: Therese Stewart, Chief Deputy City Attorney for San Francisco. There is quickly a lively back and forth between her and Judge Young on procreation — How, she answers him, would this rationale justify keeping SSCs out?

Commanding that we call gay marriages something different when they’re the same is a quintessential violation of equal protection. And here we don’t even have to infer animus — it’s right on the record. It’s clear that the idea was in fact to wall off SSCs as different, and inferior. She concludes that support for Prop 8 might not reflect bigotry, but a failure to think rationally.

She didn’t have much time, and she’s done.

Cooper has one last shot. He says that Loving v. Virginia would have come out differently had Mr. Loving wanted to marry another man. He returns to Baker (that early 1970s case) and tries to establish it as governing precedent. Baker would be like Loving – and this case would be like Loving – if SSCs could procreate. So we end as we start – fighting over whether excluding same-sex couples from marrying is based on our inability to procreate without assistance. He points to cases saying that discriminations are OK if based on real distinctions. So, is it?

How the court decides that issue might be how it decides the case. But this panel won’t have the last word.

I’m signing off for now. I’m blogged out and have to pick up my kids — the ones I didn’t have through procreation. I’ll be back later to check in, provide some context,  and respond to any and all comments. Thanks for following along.

  1. Jennifer Vanasco/editor
    December 6th, 2010 at 13:23 | #1

    Hi readers! Don’t forget to refresh your browser in order to read Culhane’s latest comments!

  2. Jennifer Vanasco/editor
    December 6th, 2010 at 14:38 | #2

    This is getting so good! So glad it’s live!

  3. Ken
    December 6th, 2010 at 14:55 | #3

    “We passed a law prohibiting gays from getting married. We were just reaffirming the traditional definition of marriage. No animus here.” I’m amused. How transparent! How is it different from saying, “We passed a law prohibiting Jews from the country club. We were just reaffirming the traditional definition of country clubs. No animus here.”

    Indeed, there is no animus. Just hate. Oh, wait, is that the same thing?

  4. December 6th, 2010 at 15:34 | #4

    Question: Why do we allow OSC that are infertal to marry? How can they procreate? If Marriage is for procreation, then should not a fertility test be required to obtain a marriage licence?

  5. clayton
    December 6th, 2010 at 15:59 | #5

    I’m amused by all this discussion about how heterosexuals need marriage becaue of the danger of accidental procreation–as though marriage as in institution has no higher purpose than to protect straights from the consequences of their own indiscretions.

    This is the weakest of the many weak arguments the Prop 8 side has ever advanced.

  6. Scott S
    December 6th, 2010 at 18:14 | #6

    If it’s important for marriage to be protected to encourage OSC’s who procreate to stay together for the benefit of the children, shouldn’t they logically extend the same marriage status to SSC’s who are also raising children? This would blow the same hole in their argument that disallowing marriage to infertile OSC’s does.

  7. michaelandfred
    December 6th, 2010 at 20:48 | #7

    I’m a little surprised no one mentions that there is no need to be married to “accidentally procreate” or ask the judge if they would accept their marriages to be reduced to a lesser stature. If they kept all the same rights would they care what it was called. Very often what is lacking is making this argument personal to heterosexuals. It’s like asking me whether i’d be bothered if someone didn’t/couldn’t celebrate Chanuka. I might find it bothersome “intellectually” but not really enough to get worked up over. Now take away my Christmas…..

    The same is true for us. Even many of our supporters don’t have the emotional connection we have because it doesn’t affect their lives in anything other than an intellectual exercise. It won’t hit home unless we can reach them on their own ground. Wold they be willing to be subjected to the same things we are. Could their marriage, religion, child rearing stand up to the scrutiny of their neighbors if their neighbors could vote anonymously?

  8. December 6th, 2010 at 21:28 | #8

    I thought it interesting that they pointed out that single parents usually require aid of some sort from the state. had he done his research, he would know that gay people do not enter lightly into taking on the responsibility of children. There is much preparation and planning and financial arrangements made well in advance. The children of gay parents usually have a better style of life than many of the said single parents because of said planning. Not to mention that they do better in school because gay parents tend to be more involved in the lives of their children. AND they do all this without the aid of the state in any way.

  9. December 6th, 2010 at 22:18 | #9

    Here are a few thoughts, given at least several hours to digest what just happened:
    (1) The court seemed much more interested in the unique facts of California’s marriage equality/Prop 8 situation than in reaching a broad decision about whether the U.S. Constitution confers a right on same-sex couples to marry.
    (2) None of the substantive arguments appeared to have much traction with the court, except possibly with Judge Young. I’m not oversimplifying to say that the argument was really about procreation — particularly, accidental procreation — and little else. That’s all they had once the court wouldn’t stand for the argument that the people should get to decide to continue restricting marriage to opposite-sex couples because — well, because marriage has so far been restricted to opposite-sex couples.
    (3) I wouldn’t be completely surprised if the court finds that the Prop 8 proponents have no standing; that’s not what I’m expecting, but it could happen. The questions on standing were pointed, withering, and perhaps decisive.
    (4) There’s much, much more to come. The court even suggested that the case might for a time be diverted to the California Supreme Court to resolve an issue central to standing. Whether or not that happens,there will still be an appeal by the losing side to the full Ninth Circuit (called an en banc hearing), a likely appeal to, and decision by, the U.S. Supreme Court, and then even a remand (possibly) to the trial court — but not to Judge Walker, who is about to retire.

    Thanks to all those who read this exhaustive live blog, and to those who commented.

    I will expand on these comments over at my own site: http://wordinedgewise.org

  10. December 6th, 2010 at 23:03 | #10

    I tried posting a summary of my thoughts on the case, with a few hours’ time to reflect, but for some reason it didn’t post. So instead please go to my “home” blog to see a full analysis. You might be especially interested in the first point I make (about a narrow path the court might take that would throw out Prop 8 but not resolve the broader question of marriage equality):

    Thanks to all who read, and especially to those who commented. I think you’ll find some of the answers to your question on my blog, but if not I’ll be happy to answer any others you might have.

  11. December 7th, 2010 at 08:25 | #11

    First cousins in four states can get married ONLY if they prove they CANNOT have children. So why do we not only allow, but require childless marriages in some cases?

  12. December 7th, 2010 at 09:21 | #12

    Daniel Ramming: I didn’t know about these laws. Can you identify the states of which you speak?
    My guess is that these laws are based on fears of disabilities where sex takes places between closely related people; I’m not sure that they’d be enacted today. Nonetheless, you point is a good one – and one I’d not considered.

  13. December 8th, 2010 at 15:19 | #13

    Hi Mr Culhane, I was wondering if you could tell us when to expect a ruling of the judges? Still this year? The ruling is the next thing to be right?

  14. December 8th, 2010 at 15:28 | #14

    The consensus is that the decision will come down within a few months, but that’s a guess. It’s also entirely possible that the court won’t decide the case at all right now, but will ask the CA S Ct to decide facts relevant to the standing question. That could gum things up for some time.
    Don’t hold your breath waiting for a final decision; that’s at least a couple of years away, given the likelihood this will end up in the S Ct.

  15. truth be told
    December 13th, 2010 at 15:03 | #15

    Cooper: “Baker would be like Loving – and this case would be like Loving – if SSCs could procreate.”
    My yuoungest (and VERY heterosexual) sister could not (or at least DID not) procreate – in EITHER of her opposite-sex marriages. The State did not require it of her. Nor does it of any couple. Procreation – neither the ability nor the intent – is NOT a requirement of marriage.
    What a hollow ‘argument’.

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