9th Circuit Court of Appeals 3 judge panel
Shannon Minter, Legal Director for the National Center for Lesbian Rights who argued both the marriage and the Prop 8 cases before the California Supreme Court, offers these initial impressions of the oral arguments heard today in the 9th Circuit Court of Appeals in San Francisco. Please also check our friends at Prop 8 Trial Tracker, who live-blogged the trial and have additional analysis. And of course, we will have more here, too.
Initial reactions to Perry argument today
By Shannon Minter
I was encouraged by the argument, which went very well for the plaintiffs. The judges were incredibly tough on both sides on the question of standing. But in the end they seemed highly skeptical that Imperial County has standing, and they also seemed convinced that current U.S. Supreme Court precedent casts much doubt on whether the proponents of Prop 8 have standing, either. There was some hint that the panel might ask the California Supreme Court to answer the question of whether California law gives the proponents of a measure the power to bring an appeal over the objections of the official representatives of the state. David Boies forcefully argued that even if that were the case, however, the proponents still could not meet federal standing requirements because they cannot show that they are directly affected in any way by whether same-sex couples can marry. It will be very interesting to see if the panel certifies a question on this point to the California Supreme Court.
On the merits, the panel was mostly focused on the unique circumstances under which Prop 8 was passed in California and on whether Prop 8 violates the principle established in the 1996 Romer case, which held that a state cannot deliberately discriminate against gay people just to send a message that they are inferior. One especially encouraging note was that at least two of the judges seemed highly critical of the Charles Cooper’s claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation. Repeatedly, the judges pressed Cooper on how procreation could be a justification for Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples?
Ted Olson was particularly eloquent and urged the Court to reach the broad question of whether same-sex couples have a fundamental right to marry.
Therese Stewart, arguing for the City of San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational given that it took away an existing right, that California continues to give same-sex couples all of the substantive rights and benefits of marriage, and that the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”
Together, Ted Olson and Terry Stewart were a great team and did a great job of presenting the most powerful arguments for upholding Judge Walker’s decision. Olson laid out the big picture and urged the court to issue a far-reaching holding that would apply to all fifty states, and Stewart gave them the option of striking down Prop 8 on narrower grounds, based on the unprecedented circumstances of its passage and of California law.
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