Patterico's Pontifications

12/6/2010

Watch the Proposition 8 Appeal Today

Filed under: General — Aaron Worthing @ 8:34 am



[Guest post by Aaron Worthing; if you have tips, please send them here.]

At 10 a.m. Pacific time, which translates to 1 p.m. Eastern, C-SPAN will carry the thing online.

C-SPAN will provide live online coverage of today’s Ninth Circuit oral argument in the Prop 8 appeal.

The argument is scheduled to begin at 10:00 a.m. PT (1:00 p.m. ET) and to run two hours. The panel has divided the argument into two hour-long sessions. The first hour will address issues regarding the standing of Prop 8 proponents and of Imperial County. The second hour will address the constitutionality of Prop 8.

In related news, Reinhardt promised a memorandum on why he shouldn’t have to disqualify himself from this case.  He has yet to deliver it, leading Ed Whelan to speculate about the reason why.

If he doesn’t get it done before the hearing then it is officially unacceptably late.  Why?  Because honestly sometimes when writing something, we lawyers convince ourselves we are wrong.  As we are forced to actually explain it, we start to see the holes that were not immediately obvious.  So that process should be finished before we hit a point of no return.

Of course, Whelan is right to suppose that this is really a pre-ordained conclusion, but still procedures matter.

[Posted and authored by Aaron Worthing.]

32 Responses to “Watch the Proposition 8 Appeal Today”

  1. Ninth Circuit precedent is dispositive on the isues of proponents’ standing and the constitutionality of Proposition 8.

    In Yniguez v. Arizonans for Official English, the Ninth Circuit ruled, in an opinion authored by Judge Stephen Reinhardt…, that initiative proponents have standing to defend their initiatives in court.

    In Adams v. Howerton, the Ninth Circuit ruled that the definition of spouse satisfied rational basis review.

    In Miranda B. v. Kitzhaber, Ninth Circuit panels are bound by Ninth Circuit as well as Supreme Court precedent, implying that the prerogative to overrule prior Ninth Circuit precedent rests with the Ninth Circuit en banc or the U.S. Supreme Court.

    Michael Ejercito (249c90)

  2. None of which will pester Reinhardt if he wants to rule otherwise.

    Kevin M (73dcc9)

  3. I am still trying to determine exactly which part of the US Constitution does this amendment to the California constitution violate. No matter what the 9th circuit rules, the decision will be appealed to the Supreme Court which most likely take the appeal. So even if the 9th rules favorably for the opposition to prop 8 what exactly do the opponents of prop 8 expect to get in their favor from the Supreme Court? Do the really believe the court will find a basis for gay marriage in the constitution like Rove vs Wade? I doubt that will happen.

    The opponents would have much better off to wait for a relatively low turn out election and have a petition drive for a ballot initiative to repeal and replace prop 8 with a prop that allows for gay marriages.

    cubanbob (409ac2)

  4. Bob, it is a fairly straightforward equal protection/due process argument under the 14th Amendment. If (as is claimed) there is no rational basis for discriminating against same-sex couples in “Marriage” then it violates the following:

    Amend XIV, Sect 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    One could easily argue this either way, but it is a DAMN sight more based in the Constitution than Roe V Wade.

    Kevin M (73dcc9)

  5. cubanbob:

    Let’s not forget that Ted Olsen, an old hand before this U.S. Supreme Court and the conservative solicitor general under Bush 42, will be arguing the case against Prop 8.

    Kman (d30fc3)

  6. Not only does it fail rational basis, Judge Walker noted that gays and lesbians were exactly the type of group that should make such a proposition subject to strict scrutiny. The “expert witnesses” that the Mormons defense team trucked for this trial were laughable. David Blankenhorn actually argued that polygamy is still “one man, one woman” because the man marries each woman individually.

    carlitos (261dcd)

  7. #6, that isn’t laughable, it’s exactly right. There is no such thing as a marriage between more than two parties. In polygynous cultures, such as that in which the Bible is set, men are free to enter into multiple marriages at the same time, but each is with only one wife. The wives are not married to each other, and have no contractual relationship with each other.

    Milhouse (ea66e3)

  8. The “expert witnesses” were limited more due to extra-legal mob actions and other intimidation than due to a lack of possible witnesses. Who wants a cross burned on your lawn your workplace picked by people trying to ruin your life?

    Kevin M (73dcc9)

  9. um, picketed

    Kevin M (73dcc9)

  10. Despite the fact that I believe that Prop 8 should stand as the will of the people, I was almost ready to stand and cheer when Ted Olsen delivered his Argument. He seemed as if he was the only one who actually understood the argument he was trying to make.
    And he actually may have convinced me to change my mind. I’d have to check the precedents he cited, though.

    DanH (3ca105)

  11. Ted Olsen and Therese Stewart did the best job of all of the lawyers. The lawyer for Imperial County was particularly – and surprisingly – unprepared.

    Judge Smith seemed to be looking for a way to distinguish this case – between what he was saying and what Reinhardt was saying, it looked like they’re congealing around an argument that the specifics of California’s case – where the state granted marriage rights to gays and then took it back – presents a problem under Romer that wouldn’t exist if it had never extended marriage rights in the first place.

    Which is interesting because it would confine the outcome to California (and arguably Maine).

    aphrael (7a8968)

  12. He seemed as if he was the only one who actually understood the argument he was trying to make.

    If you look at the trial transcripts, you will find this also to be the case. The anti-prop 8 arguments were being made up on the fly.

    The “expert witnesses” were limited more due to extra-legal mob actions and other intimidation than due to a lack of possible witnesses

    I’m unaware of this, but even if true I lack sympathy for bigots who fear “mob action” against their bigotry. If anti-miscegenation defendants had a tough time finding qualified expert witnesses willing to go on record as racists, I’d have the same lack of sympathy.

    carlitos (261dcd)

  13. er, that should read “PRO-prop 8 arguments were being made up on the fly.” Olson was anti.

    carlitos (261dcd)

  14. The anti-prop 8 arguments were being made up on the fly.

    I really don’t think that’s true. The arguments put forth by Mr. Cooper were arguments that have been made numerous times in the last several years. Whether you agree with them or not, the claim that he made them up, on the fly, in court this morning, just doesn’t hold.

    aphrael (7a8968)

  15. Sorry, I only referenced “the trial transcripts” but meant the original trial. Cooper was all over the place, as were the expert witnesses.

    carlitos (261dcd)

  16. Judge Smith seemed to be looking for a way to distinguish this case – between what he was saying and what Reinhardt was saying, it looked like they’re congealing around an argument that the specifics of California’s case – where the state granted marriage rights to gays and then took it back – presents a problem under Romer that wouldn’t exist if it had never extended marriage rights in the first place.

    Which would imply that states may deny legal recognition of same-sex marriage if they never offered it in the first place.

    Not only is there no Supreme Court or Ninth Circuit precedent supporting that, it would fly in the face of the holding in Crawford v. Los Angeles Board of Education. “We agree with the California Court of Appeal in rejecting the contention that, once a State chooses to do “more” than the Fourteenth Amendment requires, it may never recede.”

    Which is interesting because it would confine the outcome to California (and arguably Maine).

    Would that also restrict the outcome to the plaintiffs (and anyone who had been eligible to marry prior to Prop. 8)?

    Michael Ejercito (249c90)

  17. aphrael–

    Given that the extension of rights happened while the initiative vote was pending, the precedent would give state courts the power to short-circuit initiatives (or even legislative actions) by creating a legal ratchet. This California case presents a substantial separation of powers issue and I think the benefit of the doubt for legislative actions should go to the legislature (which is the People in California).

    Kevin M (73dcc9)

  18. Also, can I as a citizen of California report Judge Reinhardt for judicial misconduct because he hasn’t recused himself? If so, who would I report him to?

    I believe a clear case has been made that he is required to recuse himself from this case.

    Tanny O'Haley (12193c)

  19. It would also obviate one of the checks on a state court exceeding its powers under the state Constitution: the legislative/initiative ability to change the Constitution of invalidate the court decision. Such a regime leaves the Legislature or voters little choice other than impeachment or recall, which I think is a blunter instrument.

    Kevin M (73dcc9)

  20. In oral arguments, David Boies claimed that the clerks of Los Angeles and Alameda Counties were not bound by the injunction.

    Has he even read the ruling?

    prohibiting the
    official defendants from applying or enforcing Proposition 8

    As official defendants, the clerks of those counties are bound by the injunction, and as such must issue marriage licenses to the plaintiffs. They are similarly situated to the appellant county clerk in Zablocki v. Redhail, and the the defendant county clerk in Bishop v. Oklahoma.

    Michael Ejercito (249c90)

  21. Given that the extension of rights happened while the initiative vote was pending, the precedent would give state courts the power to short-circuit initiatives (or even legislative actions) by creating a legal ratchet. This California case presents a substantial separation of powers issue and I think the benefit of the doubt for legislative actions should go to the legislature (which is the People in California).

    And such an idea was rejected by the Supreme Court in Crawford v. Los Angeles Board of Education.

    Michael Ejercito (249c90)

  22. Here is a comment on the Loving analogy so often used in this debate.

    The SET of people a black man could legally marry, pre-Loving, was different than the SET of people a white man could marry. The law was specifically racial and thus violated the 14th amendment. Without gay marriage, what is the set of people a gay man can marry versus the set of people a straight man can marry? They are exactly the same: the set of sufficiently non-related women above a certain age. No where is sexual preference in the definition of the set.

    What IS in the definition of the set is sex. The set of people a man can marry is different than the set of people a woman can marry. THAT corresponds to the analogy with Loving that banning interracial marriages is ok because blacks can still marry other blacks. But do gay marriage activists really want to seriously argue that banning two women from marrying each other is a violation of their rights
    as women as opposed to violating their rights as lesbians? All the arguments seem to me to be centered on how bans on gay marriage violate their rights as lesbians, not as women per se.

    Michael Ejercito (249c90)

  23. OK, Michael, suppose it was reversed and they told you that you could marry anyone you wanted, so long as they were male.

    Kevin M (298030)

  24. Kevin

    OK, Michael, suppose it was reversed and they told you that you could marry anyone you wanted, so long as they were male.

    But that’s not the case and has never been the case, is it? Marriage has been between a man and a woman for thousands of years. In the case of Loving it was said blacks can marry blacks. The set described is that of race that could only marry someone only of the same race. So wouldn’t loving object to a man marrying a man and a woman marrying a woman?

    Tanny O'Haley (12193c)

  25. I lack sympathy for bigots who fear “mob action” against their bigotry.

    so if there were to be “mob action” against a demonstration where the anti-Prop 8 crowd was inciting boycotts and worse against Prop 8 supporters, you’d have no problems with that?

    redc1c4 (fb8750)

  26. I am not 100% sure that I understand the question. I was pretty specific in saying “fear of mob action” and not condoning “mob action.”

    I’m not in favor of “mob action” against anyone. However, if the “expert witnesses” called to defend Prop 8 backed out because of fear of mob action, then they can all go to hell. Screw them.

    If they are such a bunch of pussies that they don’t have the balls to testify under oath that a “God” condemns gays to hell, then they can kiss my ass.

    If they don’t want to go on record as saying that teh ghey is teh evil, then screw ’em. Really, a cross burnt on their lawn might be a useful wake up call.

    But no, I’m not condoning violence or discrimination against anyone. Unlike the Mormons, who funded 90% of the prop 8 ads.

    carlitos (261dcd)

  27. But that’s not the case and has never been the case, is it? Marriage has been between a man and a woman for thousands of years. In the case of Loving it was said blacks can marry blacks. The set described is that of race that could only marry someone only of the same race. So wouldn’t loving object to a man marrying a man and a woman marrying a woman?

    To be more accurate, under Virginia’s anti-miscengenation law, the set of persons who can marry a white man included white women, while excluding black women. Thus, there is racial discrimination.

    Under Proposition 8, the set of persons who can marry a man include lesbian women and Mormon women. Thus, both lesbian women and Mormon women have the equal right to marry a man, and this law does not discriminate between the two groups.

    The set of persons who can marry a man excludes men, of whatever race, religion, or sexual orientation. If Proposition 8 discriminates, it is ion the basis of sex, not religion or sexual orientation.

    Michael Ejercito (249c90)

  28. I’d be a whole lot more sympathetic to the SSM crowd if they’d be consistent, and defend polygamy, too. The brute fact is that such relationships have far more precedent than do same-sex marriages. Calling out the Army to force the Mormons to repudiate polygamy has to be the most blatant, by far, 1st amendment violation in our nation’s history.

    Their “This far, and no further!” stance strikes me as hypocritical at best. Special pleading, rather than principle.

    Brett Bellmore (48aeab)

  29. Calling out the Army to force the Mormons to repudiate polygamy has to be the most blatant, by far, 1st amendment violation in our nation’s history.

    So why did not the Supreme Court rule that unconstitutional?

    Michael Ejercito (249c90)

  30. po’ carlitos…. you have no problem with the use of threats to advance your agenda, but heaven forfend that the same be done against it. typical leftist hypocrisy.

    you are as morally bankrupt as your argument is intellectually and a perfect example of why i would vote in favor of Prop 8, where the election today, instead of against it as i did.

    tyranny of the mob is still tyranny, and an anathema to civilized society.

    redc1c4 (fb8750)

  31. In oral arguments, a blogger mentioned that Judge Smith had wondered whether a state that had not given any rights to same-sex couples might have a stronger argument for denying marriage rights than Californians had

    A ruling that Proposition 8 is unconstitutional because of California’s domestic partnership law would, in effect, create a perverse deterrent against other states offering legal protections and privileges to same-sex couples, and even create a perverse incentive in withdrawing some or all legal protections and privileges from same-sex couples.

    On another note, the judges were toying with the idea that Proposition 8 is unconstitutional because it withdrew a right from a minority, regardless of whether or not the right itself was protected by the U.S. Constitution. I fail to see how that would be limited to California. The 14th Amendment’s equal protection clause places limits withdrawing legal privileges from subsets of the general population, just as it limits extending legal privileges to subsets of the general population. For example, a firearms privilege (not already guaranteed by the Second Amendment) can not be offered exclusively to heterosexuals unless such an exclusion can be justified under the appropriate level of scrutiny. And the specific privileges that were actually withdrawn by Proposition 8 were the privilege to marry women, and the privilege to marry men, and they were withdrawn from women and men, respectively. There is no way to distinguish, for the purpose of equal protection analysis, the exclusive withdrawal of privileges from a subset and the exclusive extension of privileges to a subset.Thus, a ruling on this basis will affect marriage laws in all states.

    Michael Ejercito (249c90)


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