Prop 8 Is Back in Court – 9th Circuit Panel Named

Plaintiffs Paul Katami, Jeff Zarrillo, Kris Perry & Sandy Stier on Jan. 11, 2010, Trial Day 1 – Photo by Diana Walker Courtesy American Foundation for Equal Rights

Prop 8 is back in court

By guest blogger Rex Wockner

Proposition 8, the California constitutional amendment that re-banned same-sex marriage in 2008, returns to the federal courtroom Dec. 6 — this time at the 9th U.S. Circuit Court of Appeals in San Francisco.

Prop 8 was struck down as unconstitutional by U.S. District Judge Vaughn Walker in San Francisco on Aug. 4. Twelve days later, however, the 9th Circuit blocked any same-sex marriages from taking place in California while proponents of the ban attempt to appeal Walker’s ruling.

Oral arguments in the appeal will take place for two hours starting at 10 a.m. Dec. 6. It will be the only courtroom action at the appeals-court level.

In the first hour, the parties will address the question of whether any entity has legal standing to appeal Walker’s ruling. The state of California and the county clerks who were sued in the case have refused to defend Prop 8 in federal court.

The people who put Prop 8 on the ballot are hoping to be granted standing to proceed with their appeal. In addition, the Southern California desert county of Imperial is seeking to intervene in the case as a defendant.

It is unclear if either of these parties will achieve standing. If they do not, the case is over and Walker’s ruling will take effect. Or the parties could appeal the standing issue to the U.S. Supreme Court.

In the second hour of the hearing, lawyers will seek to defend or destroy Walker’s determination that Prop 8 violates the U.S. Constitution’s guarantees of due process and equal protection under the law. Those arguments will become irrelevant if no Prop 8 opponent achieves standing in the case.

Walker found that there is no “rational basis” for Prop 8′s existence and that voters inserted it into the state’s constitution solely to express “moral disapproval” of gay people.

He blamed pro-Prop 8 campaigners for fueling such disapproval by airing misleading TV ads and distributing material that “relied heavily on negative stereotypes about gays and lesbians and focused on protecting children from inchoate threats vaguely associated with gays and lesbians.”

The 9th Circuit hearing will be aired live by C-SPAN and several California television outlets.

ADDITIONALLY: Samuel Chu, executive director of California Faith for Equality, reports that the three judges have been named for the 9^th Circuit panel. As Chu notes, one of those judges is Judge Stephen Roy Reinhardt, who is married to longtime ACLU/SoCal leader Ramona Ripston. At first glance, this appears to be a good panel for us. – KO PLEASE READ Chu’s report inside.

FURTHER NOTE FROM SYD: More interesting tidbits about Judge Smith’s previous decisions.

In Perry v. Proposition 8 Official Proponents, Smith sided with the judges that decided that Campaign for CA Families (that organization even further to the right of Yes on 8) could not intervene in this case.

In Lopez v. Candaele, Smith ruled against a student who challenged a community college sexual harassment policy on the basis of First Amendment rights.  “… we conclude that the student failed to make a clear showing that his intended speech on religious topics gave rise to a specific and credible threat of adverse action from college officials under the college’s sexual harassment policy.”

UPDATE FROM KO: From AP’s Lisa Leff who interviewed Arthur Hellman, a University of Pittsburgh law school professor who is one of the leading scholars on the 9^th Circuit :

“Anyone who follows the Ninth Circuit closely would say that this a very good panel for the Prop 8 opponents and a very bad panel for its defenders. I expect a 2-1 decision, with Reinhardt and Hawkins outvoting Smith. What’s not so clear is what the ground of decision will be. The panel could affirm on the merits or it could dismiss the appeal for lack of standing – though I still think that that would look so bad (leaving the decision intact without actually ruling on it) that the panel would be reluctant to follow that course. “

Here’s Chu’s notice, from his blog:

Prop 8 – Selection of 9^th Circuit 3 Judge Panel Announced

Monday, November 29, 2010

The 9^th Circuit Court of Appeals published its calendar early this morning, including the names of the 3 judges who will be hearing arguments on Monday, December 6, 2010 at 10 a.m. on the Prop 8 case – Perry vs. Schwarzenegger.

In October, California Faith for Equality filed an amicus brief to the court supported by 700 clergy and congregations urging the panel to affirm the lower court’s ruling that Prop 8 is unconstitutional.  Read the full brief here.

The 3-judge panel, made up of one Carter-appointee, one Clinton-appointee and one George W. Bush-appointee – will hear arguments on the “standing” issue relating to the “interveners”, as well as on the merits of District Judge Vaughn Walker’s ruling that Prop 8 is unconstitutional.

“I am hopeful that the 9^th circuit court panel will affirm equality and fairness,” said Samuel Chu, executive director of CFE, “marriage is a right that every Californian deserve and this is another critical moment for the justice system to add momentum to winning full equality.  Our state and our government should never be in the business of discrimination.”

CFE will be issuing a more detailed statement and analysis of the judges, their background and past rulings later Monday.

Who are the judges?

Judge Stephen Roy Reinhardt was confirmed in 1980 after being nominated by President Carter.  He served in the U.S. Air Force. On November 18, 2009, Judge Reinhardt ruled in favor of a gay couple having their spousal health care benefits denied - Brad Levenson and Tony Sears were married during the period gay marriage was legal in California during 2008, and was seeking benefits for his partner while working as a public defender for the federal government.   Judge Reinhardt also wrote an opinion relating to “standing” in a 1997 case relating to Arizona voters amending the state Constitution to make English the state’s official language.

Judge Michael Daly Hawkins joined the court in 1994 after being nominated by President Clinton, He served as U.S. Attorney for the District of Arizona from 1977 to 1980 and then as Special Prosecutor for the Najavo Nation from 1985-1989.

Judge Norman Randy Smith was nominated by George W. Bush in 2007 and confirmed by the U.S. Senate that same year.  Born in Logan, Utah, Smith graduated from Bringham Young University with his Bachelor’s Degree in 1974, and received his J.D. from Bringham Young University’s J. Reuben Clark School of Law in 1977.

Tagged as: California Faith for Equality, Judge Vaughn Walker, Kris Perry and Sandy Stier, Paul Katami and Jeff Zarrillo, Prop 8 federal trial, PROP. 8, Rex Wockner, Samuel Chu