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December 06, 2010

Prop 8 Argument Day Guide

At 10am Pacific Time (1pm Eastern), a panel of the Ninth Circuit will hear argument in the federal Prop 8 case. It will be televised live on C-SPAN and some California local channels. You can also watch it live or later as streaming video on C-SPAN's website.

Typically, the judges allot 30 minutes for oral argument in each case. The judges have scheduled the Prop 8 argument for 2 hours, owing to the number of parties and the complicated issues. Here's a quick guide if you plan to watch or listen:

The Parties:
First, the Proponents are the folks who brought the appeal. You may also hear them referred to as "defendant-intervenors" or "appellants." They represent the official sponsors of the ballot initiative that ended gay marriage in California. They carried virtually all of the burden of fighting the case below because Governor Schwarzenegger and AG Brown refused to defend Prop 8. The Proponents will get 15 minutes of argument in the first hour and 30 minutes in the second.

Second, Imperial County is seeking an appeal on behalf of the county clerk, though it was never a party in the case below. The county says it should have been allowed to intervene at the trial court as a defendant because its clerks will have to comply with state marriage laws if Prop 8 is overturned and some of its clerks oppose gay marriage. Imperial County will have 15 minutes during the first hour.

Third, the Plaintiffs are the gay couples who brought the lawsuit below. Here, they may also be referred to as "appellees." They will get a total 50 minutes of argument today, to be split between the first hour and the second.

Finally, the City and County of San Francisco was allowed to intervene below as a plaintiff. In that capacity, San Francisco provided evidence on the economic and fiscal impact of Prop 8. They will get 10 minutes of argument today.

The Issues:
The issues can be divided into two parts and that's just what the Ninth Circuit has done. The first hour of the hearing will be devoted to arguing the Proponents' and Imperial County's standing to bring the appeal. We've discussed standing in a series of cases here at the HQ (Birther suits and the Emoluments Clause lawsuit against Sec. Clinton come to mind), so I think ya'll probably have a good grip on that.

The second issue, to be argued during the second hour, is the merits of the case: is Proposition 8, which repealed gay marriage in California by amending the California Constitution, unconstitutionally discriminatory under the U.S. Constitution? You may also hear this phrased in legalese during oral argument: is Proposition 8, which created four categories of couples when it comes to marriage, rationally related to a government interest?

The four categories are (1) straight couples, who can legally marry and divorce and be remarried; (2) unmarried gay couples, who cannot legally marry and thus cannot divorce; (3) 18,000 California gay couples who married while it was legal, who are still legally married and can divorce but not get remarried; and (4) gay couples with marriages from other jurisdictions than California who move to California, are legally recognized as married in California, and who may divorce, but not get remarried in California.

The Judges:
If the judges resolve the whole thing on standing (that is, find that the Proponents and IC cannot appeal), they will never need to reach the merits of the case. (Incidentally, this is a rather appealing option for me because it would leave the ruling intact below but make no precedent law that would have to be followed in the rest of the Ninth Circuit on the gay marriage issue.) Are the judges likely to stop at standing? I have no frickin' idea.

Judge N. Randy Smith, is a Bush 43 appointee who attended Brigham Young University for both undergraduate and law school and previously served as the head of the Idaho Republican Party. On the standing issue he, like almost all judicial conservatives, has in the past strictly enforced the rules of standing to exclude parties from the courts. Of course, here that would help the Plaintiffs. On the other hand, he is not expected to buy the Plaintiffs' argument on the merits.

Judge Michael Daly Hawkins was President Clinton's first nominee to the Ninth Circuit. Like most judicial liberals, he has broadly construed the rules of standing to allow lawsuits to proceed and damn the details. If he follows that practice, that would help the Proponents. Of course, he isn't expected to do the Proponents any favors on the merits question.

Judge Stephen Reinhardt, a Carter appointee, is the most overturned federal appellate judge in the country. It's simply not possible to meaningfully predict what he's going to do from case to case. He has already refused to recuse himself here. Proponents argued that he should drop out because his wife, the head of Southern California ACLU, had some involvement in the early stages of the Prop 8 case.

So what do I expect? I expect a fractured, complicated, and unsatisfactory-for-all-sides decision that will, if it isn't taken for en banc review, have to be tested at the Supreme Court.

Background Reading
Here is Judge Walker's decision below overturning Prop 8 (PDF).

Here is my criticism of that decision and some other notes from when it came down.

Here is Proponents' Opening Brief on appeal (PDF).

And here is Plaintiffs' reply on appeal (PDF).

Other documents of interest in the case are on the Ninth Circuit's website.

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posted by Gabriel Malor at 07:47 AM

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