Ninth Circuit Hears Historic Prop 8 Case

By Karen Ocamb -

For over two hours on Monday morning, the Ninth Circuit Court of Appeals heard oral arguments in Perry v. Schwarzenegger, the federal constitutional challenge to Prop 8, the California initiative that stripped same sex couples of their right to marry in the November 2008 election.
For those who’ve been watching the case, brought by the American Foundation for Equal Rights on behalf of two same sex couples who want to get married, the arguments presented by the proponents of Prop 8, the defendant-interveners, and the plaintiffs who are represented by famed attorneys Ted Olson and David Boies – are basically the same as those presented in the district trial, which the plaintiffs won. In that case, Judge Vaughn Walker ruled that Prop 8 is unconstitutional and ordered it overturned – but then stayed his own order while the case is on appeal.

Prop 8 Attorney Charles Cooper

The two issues argued today at the 9^th Circuit Court of Appeals in San Francisco where whether the Prop 8 proponents have “standing,” that is – the right to bring the case under the much stricter rules of the higher federal court. Charles Cooper argued that they do have standing since the named governmental defendants have refused to contest Walker’s ruling. David Boies argued that they do not because they are private citizens who would not be personally impacted by the decision since it’s the state’s responsibility to issue marriage licenses.
The panel of three judges seemed tough on both sides, but they were really hard on the representative for the deputy clerk of Imperial County, which is seeking standing as a governmental agency. The judges wanted to know why the Clerk wasn’t there and why they should give standing to this deputy clerk and not any of the other clerks from any other city or county. Boies argued that the clerk’s job is ministerial in function and would have to follow the orders of the Attorney General. The panel hinted that they might asked the California Supreme Court for their opinion on whether California law gives or should give initiative proponents the right to appeal when the governmental defendants refused to do so and object to that appeal. If the panel does ask the California high court for their opinion – expect a long delay in any decision the panel will issue.

Plaintiff Attorney Ted Olson

Cooper and Ted Olson also essentially argued the case they presented at the district court. Cooper said that marriage was traditionally held as a heterosexual institution because of straight people’s ability to procreate and “research” showed that children are better off in households with two opposite-sex parents. The judges kept asking Cooper on how Prop 8 proponents could justify the procreation argument when under California domestic partnership law (AB 205) same-sex couples are given exactly the same parental rights as straight couples?  That brought the argument back to the “word” when Cooper said, “The word is the institution.” Therese Stewart, arguing for the city of San Francisco as one of the plaintiffs in the case, pointed out that same sex couples do procreate – though perhaps not in the “old fashioned way” and that their children from assisted insemination are also recognized by the state.
Ted Olson argued that the US Supreme Court has held in numerous cases that marriage is a fundamental constitutional right and that it is anathema to strip that right away from a group of individuals who previously enjoyed that right. He said that the California voters had “built a fence around gays and lesbians and marriage” which was a discriminatory violation of the rights of same sex couples to Due Process and Equal Protection under the Constitution – and he said that the Prop 8 campaign was motivated to build that fence through animus toward gay people. He also noted that Cooper stipulated in the earlier case that he “did not know” how granting same sex coupled the right to marry in any way harmed heterosexuals. Olson also argued that evidence presented at trial showed that sexual orientation is an immutable characteristic and the case therefore should be considered under the high standard of strict scrutiny. However, the judges kept pressing him on whether they would have to make such a big ruling or whether they could limit their scope to rational basis.
Shannon Minter, Legal Director for the National Center for Lesbian Rights who argued both the marriage and the Prop 8 case before the California Supreme Court, said, “Together, Ted Olson and Terry Stewart were a great team and did a great job of presenting the most powerful arguments for upholding Judge Walker’s decision. Olson laid out the big picture and urged the court to issue a far-reaching holding that would apply to all fifty states, and Stewart gave them the option of striking down Prop 8 on narrower grounds, based on the unprecedented circumstances of its passage and of California law.”

Lambda Legal's Jon  Davidson

Jon Davidson, Legal Director of Lambda Legal, gave an pre-trial overview to a trial-watch audience at The Village
sponsored by the LA Gay & Lesbian Center. Davidson later told Frontiers that he, too, was “heartened” by the arguments on behalf of the plaintiffs. But he felt Olson “missed an opportunity” when arguing against the Prop 8 proponents’ suggestion that same sex marriage would cause children to think about sex.
“I thought Ted Olson gave an amusing response about whether that was a legitimate thing to do – to try to keep from children thinking about sexuality, you’d have to ban TV, comic books, video games and children talking to one another. But I thought there was a more fundamental response that could have been given which is: why is there an assumption that when you talk about same sex couples getting married, it has to do with an equation of gay people and of gay relationship as only having to be about sex and ignoring that they are no more likely to be about sex than the relationships of different sex couples are about relegated to that? It is, in and of itself, a homophobic response. I thought it was a missed opportunity using education about this equation that we see all the time in anything having to do with kids,” Davidson said. “But even beyond kids, can someone who’s gay be in the shower with someone who’s not? It is all about the reduction of us to being about sex. It is dehumanizing.”
Trial observers have no idea when the panel might issue its decision, especially if it asks the California Supreme Court for its opinion on the standing issue for Prop 8 proponents.

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