Additional thoughts on Prop 8 appeal

Timothy Kincaid

December 7th, 2010

Last night I had the opportunity to watch the full debate in detail and to digest what I saw. This has given me a few additional thoughts about the way the arguments went. These were my impressions:

The judges would like to address the issue. They are reluctant to let the Governor and Attorney General nullify the proposition simply by refusing to repeal; it seems too much like an illegal veto. On the other hand, they are finding it difficult to identify any parties with standing that have any interest in appealing Judge Walker’s decision.

The Proponents pretty much are, by legal precedent, unable to have standing. The Arizonans case is just too similar and the US Supreme Court determined that there was no standing for the initiative’s proponents. Interestingly, two of the three justices were on that case and they were “on the wrong side” in granting the Arizonans proponents standing before being reversed.

But there was some discussion about how ‘filling in for state officials who won’t appeal’ may be different from state to state. There may be enough question to allow for some small measure of uncertainty.

The judges were also extremely hostile to Isabel Vargas’ claim of standing. Vargas, the deputy clerk of Imperial County, is a bit player in the drama, so insignificant that most news stories don’t even include her name. And clearly the judges thought that

The first question asked in the hearing was, “Where is Dolores Provencio?”

Provencio, the Imperial County Clerk, has not participated in the case at all, not even providing a deposition. Vargas’ attorney was left arguing that Provencio wasn’t opposed to Vargas’ action, to which the judge responded, “Well, we really don’t know that, do we?”

But, on the other hand, Boies presented an argument that seemed to be both technical and preposterous. He claimed that the clerk of Imperial County was not bound by Judge Walker’s order because he only bound the named defendants: the Governor, Attorney General, Recorder, and clerks of Alameda and Los Angeles counties.

Under questioning, he went so far as to say that clerks of other counties could deny same-sex marriages until such time as the Attorney General went to state court to compel the other counties to observe Judge Walker’s ruling. This seemed to be an argument that was rather contrived and, frankly, convinced no one, especially not Judge Reinhardt.

Based on my impression, standing will be determined by two factors: 1) the panel may inquire with the CA Supreme Court whether CA law allows Proponents, or 2) the judges may convince themselves that Vargas was in conflict between the constitution and the order and thereby harmed. They will rally have to stretch to get there, but may do so in order to rule on the case. Smith may be the least receptive to Vargas’ appeal for standing, as he sees her role as purely ministerial.

I think that the Proponents erred big-time back in January when they brought Vargas rather than a real clerk. I think that the clerk of a county may well have been given standing.

Interestingly, none of the judges were impressed with the claims of the Proponents. Hawkins, at one point, mocked Accidental Pregnancy Theory and he simply would not let go of the comparisons between Proposition 8 and the Romer case. Reinhardt seemed completely unconvinced with anything that Cooper had to say and interrupted him continuously.

The judges, Reinhardt and Hawkins in particular, seemed to agree with Olson that there’s quite a difference between refusing to grant a right and taking it away once it has been enjoyed. This seems to be supported by some direct language from the SCOTUS and intuitively feels right.

Smith seemed to be in a bit of a bind. It appeared that he was searching – fishing, almost – for a rational basis on which to hang his opinion. And he couldn’t get one out of Cooper. So he finally made one up himself: that the state thought that children were best raised by their father and mother. He got a bit sharp when Olson pointed out that this contradicted the evidence presented in court.

Olson’s strongest point was when he noted that the case isn’t about state’s rights or the rights of voters. The 14th Amendment protects the rights of individuals. And if a class was to be established against which harmful discrimination was to be enacted, such discrimination couldn’t be justified by illogical reasons that fall from the sky. The reason really had to be strong enough, rational enough, and closely enough directed towards “remedying the ill” that it was worth the damage it inflicted.

I think that we won the argument. I don’t know if we won the case. If I were to bet on the result, I’d find it likely that Judge Walker’s decision will be upheld by this panel, and possibly with a 3-0 vote.


December 7th, 2010

I was thinking 3-0 also and have a bet with my partner


December 7th, 2010

“They are reluctant to let the Governor and Attorney General nullify the proposition simply by refusing to repeal; it seems too much like an illegal veto.”

It seemed that way to me, too, but how do they get past the fact that Governors, Presidents and Attorneys General have always had the option (and often chosen) to accept decisions and choose not to appeal them?

Christopher Eberz

December 7th, 2010

Timothy, on rational basis, what do you think is the stronger rebuttal to the “kids best raised by M & F” argument?

That the evidence in Perry doesn’t support that as a rational basis argument, or that it’s ultimately a red herring because Prop 8 cannot (and surely does not) actually effect what kinds of families exist, or effect their numbers?

Though…now I can’t remember…did anyone, Justice or lawyer, argue or suggest that it *could*?

Timothy Kincaid

December 7th, 2010


Both are strong arguments: you’re factually wrong and the point is irrelevant.

But the weakness in this argument is that going on the lowest definition of rational basis, one could assume that the state thinks that this is both true and relevant and therefore the basis for their action (i.e. enacting Proposition 8) is rational.

Olson’s best rebuttal is that the basis needs to not only be something that can be conjectured out of thin air, anything at all, but must also make sense. The reason for banning left-handed people from eating pie can’t be that most scissors are made for right-handers.

Yes there are differences between gay and straight people – but you can’t just point at a difference and use it as an excuse for discrimination. It has to rationally relate to the “ill” you are trying to “remedy”.

B John

December 7th, 2010

Two things…why is there always this assumption that every ruling by a lower court has to be appealed. I got somewhat frustrated, even with some of the Judges. They kept talking about this being some way that Governors could nullify a law. It is not, the law was nullified by a fair hearing in a court of competent jurisdiction, and the way the system works is that the Governor or AG can decide to accept the ruling or appeal it. Had it gone the other way, the plaintiffs could have made the same decision…let the ruling stand. There is NO legal or constitutional requirement that the government appeal every ruling it looses.

I think they kept bringing up the idea of taking away rights already granted to give themselves a way to limit the reach of their ruling. I think they know this ruling is right and that Prop 8 violates the Constitution. However, I believe they are loathe to make it a ruling that could apply nation-wide…so they want to limit it to California.


December 7th, 2010

“There is NO legal or constitutional requirement that the government appeal every ruling it looses.”

@John. That seems to be case in California and the judges were wondering aloud if it were the case in some (most? all?) other states.

Judge Smith even prompted Charles Cooper with the question, “Why didn’t you ask the California Supreme Court for an injunction to force the Attorney General to defend Prop 8?” (I’m paraphrasing), and as I recall, Charles Cooper’s answers was – Duh? It was almost like he didn’t think of that option.

I has bothered me since I found out Jerry Brown wasn’t going to appeal, but not for the reason that came up in the Circuit hearing: that perhaps not appealing was just another way of exercising veto power when, legally, the governor cannot veto an initiative.

What bothered me was that I prefer a decision for the Plaintiffs that is more far-ranging so that the decision will have an effect on more (all, actually) states, so I wanted California to defend the case all the way to the US Supreme Court. I just think it’s a good-enough case that Plaintiffs will prevail.

But now, with Judge Smith’s question, it makes me wonder if it really is justice when the AG can simply say he won’t defend the case, in effect vetoing the right to judicial review AFTER the case has been repositioned by judgment to suit the AG.

I’m certainly happy that Judge Walker ruled as he did, but I’m not really satisfied that justice is served when you get a reversal of an initiative and stop the process.

John in the Bay Area

December 7th, 2010

The Proponents of Prop 8 and the deputy clerk of Imperial County don’t appear to have any shred of standing in this case. I don’t see how the judges can come to any other conclusion.

If the judges rule that the Proponents of Prop 8 don’t have standing, I don’t see how they could go on and make a further ruling affirming the findings of Judge Walker. Without standing, I don’t see how the judges can even consider their remarks, much less make a ruling on the substance of the arguements that the lawyers for the Propenents of Prop 8 made.

It seems more logical that if the Proponents of Prop 8 don’t have standing, that Judge Walker’s ruling stands, and the appeal is dismissed. But that is not the same as affirming Judge Walker’s ruling.

Alex 0_0

December 7th, 2010

2-1 at best. I just can’t see a Mormon judge like Smith ruling against the Prophet’s direct order, and against all of California’s LDS population that financed the entire anti-gay agenda with tens of millions of dollars. There is just no way, Smith would become unworthy of a Temple Recommend if he rules for equality under any pretext. He will find some “rational” reason to rule against equality, but it will really be a theological reason. This is a core defining issue for Mormons, and judge Smith is a BYU and BYU law grad from Idaho. No effin way.

But it is amusing to read analyses that assume appellate court cases are decided on merits rather than politics.


December 7th, 2010

“It has to rationally relate to the “ill” you are trying to “remedy”.”

Precisely so. Cooper and the proponents have never identified the “ill” Prop H8 was supposed to remedy. They can, but they don’t dare, because the “ill” is us.


December 7th, 2010

Boies’ arguments concerning the scope of the injunction were technical, but that is b/c the point of law is exceedingly technical. His position is not preposterous; it only seems so to Kincaid, who doesn’t appear to grasp the issue. The issue was whether Vargas was directly bound by the trial court’s order, not whether Vargas and all of the other clerks would not eventually be impacted and guided by the ruling. The point is that Vargas could not be subject to a contempt charge, and thus lacked standing. If she failed to issue licenses to gay couples, she could lose her job or, if a state court enjoined her, be subject to a contempt proceeding in that court. This is similar to a situation when a corporation is enjoined, but not its employees.

Boies’s argument may still fail if FRCP 65 imposes a broader scope on the injunction, but however it comes out, his position is in no way preposterous.

The other key issue from the hearing is whether the proponents can advance any conceivable state interest, or whether they are limited to the actual interests advanced in the campaign or at trial. For Smith, this seems to be determinative.

Finally, there were 2 interesting political developments to come out of yesterday’s argument.

First, the impact of CA’s civil unions law played a very prominent role in undermining the rationales for Prop 8. While helpful to us yesterday, we can be sure that the anti-gay side will raise this every time a legislature considers enacting even the most modest domestic partner law. You can be absolutely certain that it will play prominently in HI.

Second, it was amusing to see Cooper disparage CO’s Amendment 2, since all of the leading lights of the religious right endorsed it, submitted amici briefs to defend it in court and, in fact, tried to get identical propositions on the ballots in 10 states in 1994. (They got it on the ballot in OR, ID, and ME and incredibly lost in all 3.)

Hopefully, this will lead to entertaining infighting among God’s people.


December 7th, 2010

I concur with Severin. Boies was not preposterous, but was actually the one shedding light. This may help:

There is a difference between “binding” and “enforceable”, that is useful, technically. Judge Walker’s injunction was binding in particular on (a) 2 county clerks (b) the AG of the state of California. However, it is enforceable, in general, by the AG, on all the clerks. This is intuitive, because we’ve had State AG’s shut down clerks who took it upon themselves to issue marriage licenses before, including in San Fran and maybe in New Hope, PA, as I recall.

If Vargas was not “bound” by the injunction, it is hard for her to argue she suffered a concrete harm from it, directly. If her job is “ministerial”, then she doesn’t have independence from the government sufficient to give her standing (neither would the actual Imperial County clerk).

David C.

December 7th, 2010

First, the impact of CA’s civil unions law played a very prominent role in undermining the rationales for Prop 8. … You can be absolutely certain that it will play prominently in HI.

This has always been the case. Any “normalization of homosexuality” has been fought every step of the way by the anti-gay industry. Fear, uncertainty, and doubt surrounding the creation of Civil Partnerships has been used consistently by anti-gay activists to thwart the movement towards marriage-equality. Such activists may have downplayed or outright denied such a direct connection, and some that are proud of their bigotry don’t even bother to try to hide their true motives.

Much more compelling are the experiences of states with legalized marriage-equality: the sky did not fall, and none of the harms that anti-marriage-equality activists predicted actually resulted from allowing same-sex couples to wed.


December 8th, 2010

After listening to these orals, I have to say that I continue to want to explore the proposition that proponents fail, even under simple rational-basis review. I think it is a fascinating exercise in morality, law, and politics.

So, for the record of the long and growing list of attempts to craft a ‘rational basis’ for exclusion of gay marriage, here are Smith’s two attempts to read what someone had written for him, no doubt.

Take note that it is not even a statement in logic, such as ‘If…, then…’. It’s a run-on sentence. It’s not an empirical conclusion, a ‘reasoned statement’ like “driving too fast is harmful, therefore we need speed limits”. It’s not like a blue law, i.e. spitting on the sidewalk is disgusting public behavior. It’s not even a statement like, “It shall be the public policy of the United States that a national park system is a good thing.”

It’s a statement about promotion, with a dangling qualifier.

Anyway, could you show these statements by Smith to be irrational, without turning the definition of “rational” in such a way that heightened scrutiny becomes and obvious requirement? :

1. First attempt: “Do you believe that the idea of distinguishing marriage from domestic partnerships, in name only, in order to promote it as a vehicle for procreation, responsible procreation, and inclusion of one group promotes legitimate government purpose all things being equal children are most likely to thrive when raised by father and mother who brought them into this world – do you believe that that would survive rational basis review.”

2. Second ‘sit the question’ attempt: “Do you believe that the idea of distinguishing marriage from domestic partnerships, in name only, to promote it as a vehicle for procreation, all else being equal, children likely to thrive when raised by father and mother who brought them into this world – that it is irrational.”


December 8th, 2010

The issue of standing and harm for Vargas is really a red herring, an eleventh hour attempt to get what they know they don’t have.

The “harm” aspect is where it is particularly amusing.

as a deputy clerk, or even the clerk, any action they took in the states name to deny or issue a license is in name only, their official office is the real party to the suit.

Like the original suit is against Schwarzenegger and Brown only because they hold the jobs they hold. It is the state that is actually being sued. Assuming the trial lasted passed the election and swearing in, the new Gov and AG would then take those roles, though it is likely that the case “name” would not change.

For “harm” to attach to the deputy clerk personally, s/he would have to defy the AG and act on their own impetus to harm or deny the required actions of their office. The people making the charge that this happened would have to prove that is was done with a sufficient bias and malice to exceed the threshold that the State would defend, such as level would have to be criminal in nature.

Imagine a state cop that used their badge and uniform to perform home invasions or rape. That individual would lose their right of protection that the state gives them in performing their duties.

For arguments sake, in the situations put forth as “harm” by Vargas, her responsibility is to request clarity from the CLERK, Registrar, and AG before issuing any proclamation that would let her avoid the duties of her office.

For reference on this see the state Supreme Courts injunction that stopped the City of San Francisco Clerk from issuing licenses the first time around. The city decided to let gay people marry knowing that this would create a tempest of a case. Instead of seeking guidance (officially anyway) they went ahead and did it. This was strategic in that it triggered the Supreme Court ruling that allowed the gay marriages, but in the interim those marriages were stopped.

Vargas, and her attorneys, know that she can suffer no harm as long as she acts in best official conscious to enforce the laws of the state. She knows that she is “ministerial” in nature and that she acts as an agent of the state under the guidance of the Clerk and the Registrar who work under the authority of the Governor, AG and Legislature. She is an “employee” not a decision maker in this context.


December 8th, 2010

I was also fascinated by Olson’s admission that the Court was free to go beyond the trial record to impute a rational basis for a governmental interest or to discover, a priori (?), some “legislative intent/facts” of the plebiscite, beyond (a) the documents given to voters (b) the materials shown at trial from the campaigns to pass the measure and (c) testimony.

This seems to be a fundamental problem with plebiscites, where there are no legislative findings or stated intent, as there might be from a legislature.

A problem, because it forces the court to choose
1. Whatever the legislative basis for passing the law, we can’t know it, and we don’t need to know it (to adjudicate)
2. We can impute – out of thin air? – a “rational basis” we find favorable/unfavorable, and decide the case
3. We can impute that there can be no rational basis, and decide the case that way

Regan DuCasse

December 8th, 2010

Cooper made it sound as if the AG and governor had NEVER defended Prop. 8, and therefore were inferring veto or invalidation by not appealing.

But in Judge Walker’s court, the state had an attorney that acted as a rep for the AG’s office. They and Cooper and another attorney from the ADF all defended Prop. 8.

But their case was weak. Walker’s decision was based on the opposition’s inability to defend it with evidence, competent and credible witnesses. And Walker touched on each and every point of law in the written transcript on how he reached his decision.
I sat there and wondered if Cooper EVER read it.

After the decision, the AG (Jerry Brown) didn’t appeal because the state HAD NO STRONG CASE enough to justify the resources to do so.

Someone can correct me if I’m wrong. But Imperial County only got into this mess because was the most conservative one, and has been the strongest supporter of 8 with the most votes for it coming from this district.

Prop. 8 supporters thought fertile witnesses were possible. The clerk in question, never actually suffered any affect or risk to her job because the legal issuing of licenses to gay couples was not only short, but few gay couples actually registered in that area compared to places like Los Angeles Co and Alameda which are the largest counties in the state with denser populations and more gay couples in those counties registering to marry.

I caught Cooper’s maneuvers fairly early. Which required Boise to get stuck on a matter of clearing out Cooper’s smoke screen.

Timothy Kincaid

December 8th, 2010


All the central valley counties were about the same with, I believe, Tulare topping out at 75.4%

The most Yes on 8 votes came from Los Angeles County with 1.3 million votes (50.4%).


December 8th, 2010

I enjoyed watching Smith’s attempts to come up with a rational basis for only allowing the term marriage to be given to opposite-sex couples. It was a mix of reading prepared questions and rambling. Olson stated, perhaps wrongly, that the court could hypothesize a possible rational basis outside the possible rational bases already presented in the campaign and the lower court, but Smith’s attempts were flimsy and I don’t think the other two judges are likely to accept this proposed rational basis or any other that might be suggested in the proceedings.


December 9th, 2010

In thinking more about trying to answer my own question above, I’ll add this.

One of the most bizarre outcomes, I think, would be for a Justice to admit that proponents have standing on appeal and then apply a minimum rational basis standard.

The first says that the appellants have a true ‘case or controversy’ and the second sets the bar so low as to define away the ‘controversy’ to be adjudicated, potentially by even imagining wholesale what might be the conceivable ‘rational basis’ of that controversy, unrelated to the facts of the case.

It seems to me that, in terms of coming up with a philosophy of jurisprudence, one could parse out the small set of circumstances in which using a minimal, rational basis test is obvious, e.g. setting the speed limit to 55, not 54.

However, when it comes time for the courts to judge moral goods-in-conflict that minimal rational basis would be inadequate. One would seem to want, naturally, to weigh harms and so forth, in the wisdom of Solomon.

Even if you took the hardline view that moral choices are like no others, with lines ultimately drawn/adjudicated just as arbitrarily (by revealed truth?), I’d argue that, even then, the implementation of the law should show mercy. One might make an arbitrary moral choice, but show compassion in the implementation of it.

This is why, for a while now, my view has been that withholding marriage from gay couples because they cannot ‘naturally’ reproduce is simply mean-spirited. We allow the infertile, the elderly, the divorced-with-children to marry and remarry. All of those can be cast as ‘merciful exceptions’, not just practical exceptions.


December 9th, 2010

s/b “We allow the infertile, the elderly, the divorced-with-children to marry and remarry, with the last done at greatly heightened risk to the kids.”

Gib Wallis

December 10th, 2010

I keep wondering with Prop 8 if in the district ruling it will affect the Hawaii marriage case from 1994.

The Hawaiian Supreme Court said a statute limiting marriage to opposite sex couples was discriminatory. Then Amendment 2 was added by the voters which gave to the legislature the ability to reserve marriage for opposite sex couples.

The HA SC then mooted the case.

The parallels to CA are pretty clear to me… but I’m not a constitutional law expert.

In HA the court stayed its own decision, so there were never any HA gay marriages as in CA, but the right was recognized before it was taken away.

If the rationale against exporting a pro marriage equality decision in CA ends up hinging on given and taking away rights, HA might go along for the ride. If it hinges on there being several classes created by actually having tangible marriage equality with resulting couples for a few months, then HA would be barred from joining in.

HA would also be barred if it all hinges on the word marriage vs. domestic partnership, as they do not have that. But that could establish a precedent for other western states like Oregon.

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