Prop 8 Appeal

Timothy Kincaid

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.

Rev. Steve

December 6th, 2010

Just getting in from work. I kept tabs on the proceedings on my breaks, but it was hard to keep up. Thanks for the recap. You guys are great!


December 6th, 2010

I kind of want the proponents to win on standing, so they can lose on constitutionality. Otherwise, Perry doesn’t get past California.


December 6th, 2010

re: kelly, while i understand where you’re coming from, i think it’s better if they are found not to have standing. having millions of married same-sex couples in california (or from other states married in california and who then go back to their states) has the potential to have the same effect (if not more) as a decision by the supreme court by forcing the us congress and their respective state legislatures & neighbors to deal with the matter. and i am not in california, i live in new york. but i can see that reasonable people can have different opinions on this.

a question for timothy: if imperial county and the prop9 proponents are found not to have standing by this court, but that later on, the full court or the scotus finds that they do have standing and sends the case back to this level, would it be the same panel as today, or would it be a different panel?


December 6th, 2010

that of course should have read prop8 not 9; and re the indirect “nullification”, it seemed that reinhardt too was sympathetic to that argument, no?

Ben in Argentina

December 7th, 2010

Thanks for the update, Timothy.


December 7th, 2010

Mormon Judge Randy Smith shouldn’t pay too much credence on the emphasis to the word “marriage”. After all, his religion looks down at people who are simply “married” in a civil ceremony (as in a city hall, or on a ship, or in a chapel on the Las Vegas Strip). “Real” marriages in Mormon parlance are called “Sealings” in their Temples. So, a Mormon should not quibble about the word “marriage”.

The editorial commentator on last night’s KSL NBC channel (owned by the Mormon Church) lamented about the demise of “marriage” or the institution of it. But, in the montage of images of what is wrong with marriage, KSL used some pictures of gay men and of lesbians exchanging vows.

Glaringly absent was not ONE picture of any polygamists.

Some Mormons have selective reasoning…including the editorial board at their TV station.

Scooter J

December 7th, 2010

Awesome recap, thank you on behalf of all of us “legally challenged” readers.

L. Junius Brutus

December 7th, 2010

What disappointed me most, was that the judges seemed ready to give standing to the advocates for Proposition 8. That was the one chance to secure gay marriage in California while preventing the Supreme Court from ruling on it.

Timothy Kincaid

December 7th, 2010


a question for timothy: if imperial county and the prop8 proponents are found not to have standing by this court, but that later on, the full court or the scotus finds that they do have standing and sends the case back to this level, would it be the same panel as today, or would it be a different panel?

Good question. And I don’t know the answer.

Regan DuCasse

December 7th, 2010

I watched the proceedings at the West Hollywood City Hall, and there were several things that Cooper did that weren’t accurate.
He did place a lot on the standing of a deputy clerk who wasn’t there to testify, and Cooper did admit that she wasn’t a client and never had been.

This appeared to be his strategy, that the defense of the repeal was confined to two CA counties, excluding Imperial county, that he DID represent. So therefore the extent of the overturn had no bearing on Imperial Co.

He also kept saying that the AG and the governor refused to APPEAL, then said they refused to DEFEND Prop. 8 in Walker’s court.
That’s actually a lie. There WAS representative from the AG’s office in court, who did speak.
But the state had no witnesses, and no precedents that could support THEIR case.
Walker gave each side PLENTY of opportunity to produce them, he allowed video depositions where he stated he preferred the witnesses to be in court, and once he made his decision, it was thoroughly described in an over 130 page transcript.

After Walker’s decision, when the defenders of 8 appealed, THAT is when the AG decided not to support the appeal.
They saw a losing case and chose not to commit any more money and time (the state doesn’t have) to an exceptionally WEAK CASE.

But Cooper made it sound like they refused from the outset and therefore were derelict in their responsibility.

Perhaps Brown should say something about that in his own defense.

The opposition is crying foul because Reinhardt didn’t recuse himself, they are crying corruption as they did with Walker.

They are also parsing, as Cooper did, that the judges, AG and the state didn’t EVER defend Prop. 8, as if they had all the clear evidence, witnesses and VOTERS on their side and that’s that.

You can smell the resentment that the courts are involved at all, as if courts shouldn’t and never DID participate in the defense of minorities or overturned discriminatory law.
But our opposition doesn’t see it as discrimination, except against voters.

THEY brought this, by putting up a minority’s rights up to it, then taking away rights already granted BY the Constitution.

As Brian Brown’s e-newletters hit, he has no idea that this is EXACTLY how histories’ worst haters and their political action behaved.

If only he’d pay attention to the timeline and how Nazis became so powerful.
Judges were accused, when the few who defended Jews and others were attacked just as NOM is doing.

The Nuremberg trials were an example of the reach of Nazis to dispose of any defenders against Nazi encroachment on their own citizens.
Without the Constitution and courts in place for protection, we can see that the courts and Constitution itself will be damaged.

Sometimes I can’t believe how unforgivably ignorant…and dangerous some people are while denying there is any resemblance to very RECENT issues that are there precisely so that anyone could know better.


December 7th, 2010

My favorite part was seeing Cooper trying to spin his way out of answering when he was asked, “If there’s no rational basis for taking away the RIGHTS of marriage from gays and lesbians, why is there as basis in taking away the TERM?”

So what happens now? Is there further testimony or argument scheduled?


December 7th, 2010

What happens now is we wait for the judges to issue a ruling.

Eric in Oakland

December 7th, 2010


I am not a lawyer so I could be wrong about this, but my understanding is that a judgement can be appealed but if there is no judgement (because the case is not heard due to lack of standing) then there is nothing to appeal to the Supreme Court. You cannot skip levels.


December 8th, 2010

correct – the Prop8 supporters, if found not to have standing, can’t appeal the original Walker ruling to the Supreme Court, they can however, appeal the ruling that they don’t have standing to the SC. So it is possible (although not probable) that the SC could find that the Prop8 people have standing in which case it goes back to the 9th circuit. No idea if it goes back to the same panel, but my logic circuits say it would since they have already heard the appeals on the merits.


December 8th, 2010

My understanding is that before an appeal to the US Supreme Court there would likely be a petition by the losing side for en banc review (that is, a panel of 11 9th Circuit judges, rather than just the 3). Unless the proponents throw in the towel, this won’t be over soon.

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