Posted By Eric Ethington (Author) on December 6, 2010
Whew! What an afternoon! In what was supposed to be a 2 hour session. The 9th District Court heard 3 hours worth of testimony from both sides on the issues of standing as well as the constitutionality of Prop 8. Analysis and review below!
The purpose of the appeals trial was for Judges Hawkins, Reinhardt and Smith to decide on two factors: (A) Whether the proponents of Proposition 8 had legal standing to appeal without the support of the California State Government and (B) whether Judge Walker’s ruling the Prop 8 is unconstitutional is valid.
Speaking on behalf of the Pro-8ers was lead Defense attorney Charles Cooper, and Robert Tyler who was representing Isabel Vargas, a deputy clerk of Imperial County. Representing the Anti-Prop 8 side was attorneys Ted Olson, David Boies and Therese Stewart, SF chief deputy city attorney.
All 3 Judges showed the utmost impartiality as they questioned both sides of the case harshly and left virtually no stone unturned. Overall, I think the case went very well for the pro-gay marriage case. We’ll have to see whether or not the court decides to rule that the Defense has standing to appeal, but in all honesty I’m hoping that they give that point to the haters. If they don’t have standing, California will get same sex marriage back (which would be great). But if they are given standing to appeal and this moves on to the US Supreme Court, we have the possibility of getting the right to marriage nationwide.
During the first hour of arguments on often-arcane constitutional standing issues, ninth circuit judges Michael Daly Hawkins, Stephen R. Reinhardt, and N. Randy Smith questioned whether outside parties in a ballot initiative have standing to appeal a federal case.
Judge N. Randy Smith further asked whether Prop. 8 supporters, represented by attorney Charles Cooper, had asked the court to order an appeal by the state, which declined to defend Prop. 8 in court. Cooper said his legal team did not do so. A separate conservative organization attempted to do so but was rejected by a state court of appeals.
Following Cooper, Judge Hawkins sharply questioned attorney Robert Tyler of the conservative legal group Advocates for Faith & Freedom. Tyler represented Isabel Vargas, a deputy clerk of Imperial County, who has attempted to intervene in the suit. Prop. 8 passed by a wide margin in the county.
“Is there anything to suggest that [Vargas] is acting with the clerk’s authority?” Hawkins asked Tyler. “There’s nothing in the record to assume your client has any authority to attempt to intervene in the litigation.”
The second half of the day dealt with the issue of whether Prop 8 is constitutional. Cooper could of course be counted on to bring up every discredited argument, focused all around the idea that “marriage is just for procreation.” His logic was entirely circular however, as when questioned he agreed that infertile heterosexual couples should still be allowed to marry.
Olson, Boies and Stewart could be counted on for clear, concise and perfect answers. Olson highlighted how Prop 8 in essence penalized a specific population for taking part in a constitutionally protected act. He also highlighted the ludicrous argument that kids would be exposed to sexuality earlier with a humorous response, saying that if that’s the concern we should ban video games instead.
Stewart tackled the question of procreation, pointing out that many homosexual couples procreate. “It may not be in the ‘old fashion’ way, but so do many heterosexual couples!”
Olson, I think, summed up the case perfectly in one statement. He said that “even if you just look at the fact that Prop8 stripped away an existing right from a minority, that alone makes it unconstitutional.”