Live-blogging Ninth Circuit oral arguments on Prop 8
To watch online, follow this link. I'll offer running comments below.
1:09 pm: Charles Cooper, attorney for the Prop 8 proponents who seek the standing to intervene in the case after California's governor and attorney general refused to appeal the pro-gay ruling, is having a rough time of it. In response to questioning from the judges, he had trouble citing a federal case as precedent. He said he and his clients were not involved in the unsuccessful attempt to compel the AG to appeal.
1:19 pm: Robert Tyler, attorney for Imperial County, has acknowledged that Ms. Vargas, a deputy clerk in the county clerk's office who seeks to intervene in opposition to same-sex marriage, does not represent the clerk.
1:26 pm: Judge Stephen Reinhardt admonishes Tyler for not simply saying he doesn't know the answer to a question when he doesn't know the answer.
1:28 pm: Senior Judge Michael Hawkins notes (not for the first time) that there is nothing in the affidavit of Ms. Vargas indicating that she is acting on the authority of the clerk. Tyler has no answer on why that is so, but keeps saying that he doesn't think the case should turn on that point.
1:30 pm: Here comes the fun. David Boies steps up to the podium.
1:31 pm: Boies says that Ms. Vargas is not directly bound by Judge Walker's injunction and lacks Article 3 standing to intervene.
1:33 pm: Boies cites Lockyer to note that marriage is a statewide function and not controlled at the county or municipal level.
1:35 pm: Boies says Lockyer states that county clerks are purely ministerial officials.
1:40 pm: Judge Randy Smith asks whether the governor and AG have effectively nullified the effect of the initiative by not appealing. Boies makes the distinction that here they are not simply refusing to respect an initiative result but declining to appeal a court ruling against that initiative.
1:43 pm: Boies cites a few federal cases (including Justice Ginsburg's ruling on an Arizona American English initiative) to argue that the absence of an appeal by the governor and AG does not give standing to someone else.
1:50 pm: Boies says that clear federal court precedent requires that proponents must demonstrate a "personal, concrete, and particularized injury" in order to gain standing. He says they lack that, and thus lack Article 3 standing.
1:52 pm: In response to Judge Smith, Boies says he thinks the Ninth Circuit does not have the power to change the scope of the injunction assuming it denies the standing claim.
1:57 pm: During an exchange over why Boies is only dealing with the standing issue and not reaching the merits of the underlying case, Judge Reinhardt makes a quip about the fact that Boies, despite his abilities and fame, lost to his co-counsel, Ted Olson (in Bush v. Gore).
2:04 pm: Charles Cooper is attempting to rebut Boies, and goes back to the Arizona case and Karcher. He objects to the nullification of the will of California voters.
2:07 pm: Court takes 10-minute recess.
2:22 pm: Court returns from recess. Mr. Cooper resumes.
2:24 pm: In response to the chief judge, Cooper says "this is nothing like" the situation in Loving.
2:27 pm: Cooper says that the rational basis test applies here, and that if there is any rational basis for the traditional, opposite-sex definition of marriage, then it must be upheld. So gee, he doesn't like Judge Walker's decision.
2:29 pm: After Cooper explains importance of legal protections for heterosexual marriage, Judge Reinhardt says "That sounds like a good argument for prohibiting divorce," but does not see how it argues against also protecting same-sex couples.
2:31 pm: Judge Smith asks, given that same-sex couples (under the civil unions law) have all the same rights as straight couples, what is the rational basis for denying them the word "marriage"? Cooper says if you change the meaning of the word you change the institution. "The name of marriage is effectively the institution." Changing it would create a "genderless institution" with "little or no relation to the traditional meaning or purpose."
2:34 pm: Cooper is trying to explain to the chief judge why this case is not comparable to Romer v. Evans (the Colorado Amendment 2 case). Cooper says that Amendment 2 left gay Coloradans strangers to the law. Judge Hawkins says, so if you take away a bunch of rights it's not okay, but if you take away just one right, it's okay? Cooper's distinction between the two cases does not appear to be impressing Hawkins.
2:40 pm: Cooper says that all eight courts that have dealt with challenges to traditional marriage have denied 14th Amendment protection for same-sex marriage.
2:44 pm: Cooper is distinguishing between U.S. Supreme Court rulings and CA Supreme Court rulings (the latter only referring to the state constitution).
2:50 pm: Cooper and Reinhardt have been going back and forth. Cooper claims that "the people themselves are the tribunal of the [state] constitution" and can do what they want. Reinhardt says there are limits, and that the people cannot act out of bias.
2:54 pm: Judge Smith asks if states that have not granted rights to same-sex partners would have a stronger rational basis argument than does California. Cooper says not; they would have a weaker case. He says the state has gone as far to protect same-sex couples as it can short of redefining marriage. (Of course, the legislature twice enacted marriage equality and was met with a veto by the Governator.)
2:59 pm: Judge Smith asks whether this case satisfies the heightened scrutiny called for by Justice O'Connor in her opinion in Lawrence. Cooper says yes. Policing the issuance of marriage licenses to avoid issuing them to infertile straight couples would require "Orwellian" measures.
3:01 pm: Ted Olson steps up for the plaintiffs.
3:04 pm: Olson says nothing in Crawford raises an initiative above the protections of the 14th Amendment.
3:07 pm: Olson notes that Cooper cited the rights of the voters to decide policy, whereas the rights under the federal constitution's Bill of Rights and 14th Amendment are rights of individuals.
3:09 pm: Olson: you don't have to go any farther than Romer to uphold plaintiffs.
3:10 pm: Olson: Lawrence states that intimate relations between members of the same sex is constitutionally protected activity. Denying marriage rights to such couples is therefore taking away a constitutionally protected right. This appears to make the argument that Justice Scalia made in his dissent in Lawrence. Thanks again, Nino.
3:12 pm: Olson notes that "Protect our children from thinking that same-sex marriage is okay" was the message in advertisements by Prop 8 proponents and in the description of the initiative. He goes on to say that if walling off a right is justified to protect children from being prematurely exposed to considerations of sexuality, that would justify banning comic books, video games and all sorts of other protected literature.
3:15 pm: I wish to interrupt this note-taking to state that I love Ted Olson. What perfect incisiveness, what wonderful passion.
3:16 pm: There "would be no harm" as a result of elimination of Prop 8. This gets to the heart of the case. Proponents have demonstrated no harm.
3:19 pm: Cites various reasons calling for heightened scrutiny to justify discrimination against same-sex couples.
3:21 pm: In response to Judge Smith, Olson points out that Cooper said "the name is the institution," so that yes, denying the word "marriage," all other things being equal, would be discriminatory. "Restricting marriage to people of the opposite sex doesn't mean that there will not be people in same-sex marriages." (Notes 18,000 same-sex married couples.)
3:23 pm: Olson goes back to Judge Reinhardt's suggestion that proponents' arguments make a better case for prohibiting divorce than for barring same-sex marriage.
3:26 pm: Olson says that the marriage law in CA with its discrimination and different applicability to different people (including the fact that 18,000 same-sex couples are legally married but others cannot marry and if any of the 18,000 divorced they could not even remarry the same person) is irrational.
3:30 pm: California has taken a class of citizens and placed them in a separate category. Explains lucidly how Prop 8 fails the rational basis test.
3:31 pm: Therese Stewart, S.F. Chief Deputy City Attorney, steps up to argue in defense of same-sex marriage.
3:33 pm: In response to a question from Chief Judge Hawkins, Stewart says that the term "marriage" is a very important term.
3:35 pm: Same-sex couples do procreate, though not in "the old-fashioned way." Excluding those couples from marriage does not protect opposite-sex couples.
3:37 pm: Cites Strauss and Romer to show that Prop 8 is based on animus toward a class. Equal Protection does not allow the state to uphold a measure based on a view that some people are unworthy.
3:40 pm: Cooper is back up, disputing Olson regarding Baker.
3:44 pm: Judge to Cooper: "When you're in the red, that doesn't mean you have that much time remaining." (Laughter) Cooper reiterates distinction that Romer was invalid because it made gays strangers under the law.
3:45 pm: Court adjourns.
My immediate reaction is that the plaitiffs (the pro-gay side) had much the better of the argument.
Update: Chris Geidner reports here.