Tuesday, December 7, 2010

Prop. 8 Argument: As Expected, With Some Twists

The Prop. 8 argument in a tweet: At least two votes on the merits for striking Prop. 8, if merits reached at all. Panel much as expected, with some twists.

On Monday, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on the constitutionality of California's Proposition 8, which defines marriage as between a man and a woman. Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith heard sessions addressing standing and the merits (totaling roughly 2.5 hours).

Charles Cooper argued for Prop. 8 during both sessions, joined in the first by Robert Tyler for Imperial County. Opposing Prop. 8 were David Boies, during the first session, and Ted Olson, joined by Therese Stewart for San Francisco, during the second.

On standing, the judges were somewhat difficult to read. For instance, Judges Reinhardt and Smith, billed in advance as the liberal and conservative, respectively, both had critical questions for Boies. Smith inquired about the governor's role following a voter initiative. By law, the governor cannot veto such an initiative, so why should he be able to nullify it by not appealing? Reinhardt expressed concern about overturning the voters' initiative and wondered if the standing question should be certified to the California Supreme Court. Reinhardt also doubted Boies' assertion that the district court's injunction of Prop. 8 only applies to the two defendant counties (not Imperial or other counties, conveniently weakening Imperial's standing).

As it happened, though, Imperial's standing appeared weak anyway. For instance, Judge Smith questioned whether the county deputy clerk only performs ministerial duties related to marriage, casting doubt on her standing. Judge Hawkins appeared particularly frustrated with the county, admonishing Tyler to answer yes or no and stop wasting time.

As a side note, Judge Hawkins maintained a very serious (somewhere between "measure twice, cut once" and "take no prisoners") manner and facial expressions throughout the hearing, adding to the intensity of his effective, pointed questions. Judge Reinhardt, on the other hand, enlivened the long argument with occasional humor, for example, ribbing Boies about losing to Olson in Bush v. Gore.

During the merits session, the judges appeared to line up more clearly and as predicted, but not completely. Judges Reinhardt and Hawkins both equated the Prop. 8 case with Romer, where the Supreme Court struck down a voter-approved provision stating that gays were not a protected class in Colorado. When Cooper attempted to distinguish that provision as broader than Prop. 8, Judge Hawkins asked, "So, if you take away a bunch of rights, that's bad. But if you just take away one right, it's OK?"

Perhaps unexpectedly, Judge Smith questioned the rational basis of Prop. 8, since California allows domestic partnerships. In essence, why provide all the rights of marriage to gay people, minus the marriage label? What is the rational basis? However, Judge Smith did seem willing to consider the procreative nature of heterosexual marriage as a possible rational basis for Prop. 8.

No matter the result, today's argument is just a stepalbeit an important one. The panel decision, whatever it is, will be appealed, given the deeply held views on both sides.

Thus, the appropriate closing summary tweet may well be: Both sides begin looking at Circuit Rule 35-1 (en banc rehearing) and the Supreme Court Rules.