Prop 8 Appeal
December 6th, 2010
Today the Ninth Circuit Court of Appeals heard arguments as to the constitutionality of Proposition 8 and arguments as to whether there is anyone with standing to defend the proposition. We do not know the eventual outcome, but here are my general impressions.
When the Proponents for Proposition 8 filed their appeal, they seemed to admit that their claim of standing was shaky. And they put a lot of reliance on the ability of the deputy clerk of Imperial County to provide standing for them.
Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.
It appeared that their entire hopes of arguing the constitutionality of Proposition 8 lay in, get this, the deputy clerk of one county. At the time I wondered at the wisdom of arguing that the deputy clerk was injured by the case; surely her job is not to make determinations as to whether anyone can marry, but rather to follow the instructions of those who do have authority, in this case either the State Registrar or perhaps even the County Clerk. And this was a point that was not lost on the appellate judges.
Adding to the difficulties for the County, Robert Tyler, the attorney arguing on their behalf was inept. At one point the judges told him that if he didn’t know the answer to a question that he should just say so.
The case for standing for the Proponents was given by Charles Cooper, who based his arguments on Karcher v. May, a New Jersey case which predated Arizonans for Official English. Arizonans was the closest in case law and it seems to suggest that Proponents do not have standing.
The law wasn’t really there for them, so it seems that the supporters of Proposition 8 are arguing mostly that it just isn’t fair for the Governor and Attorney General to “nullify” the vote of the people by refusing to appeal the Trial Judge’s decision, a plea that seems to have found sympathy with Judge Smith.
Coopers arguments that the state has a rational cause to discriminate against same-sex couples was not received with open arms. All three judges seemed aware that discrimination was occurring, was intentional, and that a basis for the discrimination required some ‘splaining. It remains to be seen if Cooper was adequately credible.
Judge Hawkins questioned whether Prop 8 would not be subjected to the same standard as Colorado’s Amendment 2 which was thrown out. Cooper argued that Amendment 2 was too broad and sweeping where Prop 8 only takes away one right. Hawkins seemed unconvinced that constitutionality was determined by the number of rights that were denied.
And the ol’ “responsible procreation” argument didn’t really stand up well. Judge Reinhardt noted that Cooper’s arguments were stronger for banning divorce than for banning same-sex marriage.
And when it was noted that California did nothing whatsoever in the realm of “encouraging responsible procreation” by discouraging civil unions, Cooper was left arguing that it’s only the word “marriage” that has to be protected to encourage responsible procreation of heterosexuals that may accidentally become pregnant if they have sex while not married. “To redefine the word is to change the institution.”
The soul of Cooper’s argument is to ignore the impact that the word used to describe the recognition given to same-sex couples will have on those same-sex couples, and to instead insist that it will most seriously impact heterosexuals who are not in committed relationships.
That is, on its face, rather difficult to treat credibly.
All in all, marriage equality held its own in the courtroom today. Animus did not fare so well. It’s impossible to predict such things, but I think that today gave us much to be hopeful for.