Some Brief Thoughts on Today’s Prop 8 Oral Arguments

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If you didn’t get a chance to watch today’s oral arguments for the Prop 8 appeal, you didn’t necessarily miss much. Nothing was decided, though the questions from the judges certainly gave us some interesting insight into their perspectives.

The first hour was dedicated to the questions of standing. Do the defendant-intervenors (Protect Marriage) have standing to continue defending Prop 8 since they are not named as actual defendants? Cooper argued for them essentially saying that yes, they do, because if the Attorney General will not defend them, no one can. In doing so, he misconstrued the Karcher case, in which former New Jersey legislators were not given standing (according to Professor David Cruz). Also, the passing of the initiative was a “check” by the people on the CA Supreme Court. Boies countered that the initiative was a legislative act, and that essentially, the people do not also have the executive authority to defend it if their AG won’t.

Basically, the California Ballot Initiative Process is messed up. Two of the judges on the panel seemed interested in the California Supreme Court certifying the DI’s standing, which would alleviate them of that responsibility. Boies pointed out that his arguments would be the same either way, and that awaiting such a decision would merely delay the completion of the case unnecessarily.

As for Imperial County, the discussion was whether the County Clerk is directly impacted by the injunction against enforcing Proposition 8. Boies argued that the role of the clerk is ministerial—that they simply carry out state law as enforced by the Attorney General. Professor David Cruz, who was in the live chat with us, made the brilliant point that San Francisco was not allowed to give same-sex couples marriage licenses in 2004, so in the wake of the injunction, clerks should also not be allowed to not give same-sex couples marriage licenses.

It is my understanding that standing will only be granted to one of these groups, if any. (If no standing is found for either Protect Marriage or Imperial County, then the merits of the case will not be addressed and Judge Walker’s decision that Prop 8 is unconstitutional will stand.)

The rest of the oral arguments were much of what we are already used to.

Cooper kept trying to say the same old arguments about preserving the institution of marriage and all its unique benefits. The judges pointed out that gays and lesbians essentially have everything marriage is defined by except the word. (Therese Stewart, attorney for San Francisco, also later pointed out that California manages all parenting and child-rearing completely separate from marriage.) Cooper offered, “The word is the institution,” trying his best to argue it is okay for the people to take away a right.

Olson countered with a very concise message that this was discrimination motivated by animus. The elimination of Prop 8 does nothing to harm heterosexual couples. He also hammered home that sexual orientation was immutable, and that the “crazy quilt” (all the different marriage statuses that exist in CA as a result of Prop 8) demonstrate just how irrational it is.

The end of the day is slightly anti-climactic, as we await the decision of the panel. If they want the CA Supreme Court to chime in on the standing of the defendant-intervenors, any real decision in the case will be delayed. If they find that neither Protect Marriage or Imperial County have standing, then the case is over and Prop 8 is overturned. If either group is found to have standing, then the case continues and the merits weighed in on.

Nonetheless, it was an important day, if for no other reason than the fact that these arguments were televised. While the first hour’s debate on standing was dry and probably of little interested, the ensuing hour and a half discussion about gay people was poignant. I encourage everyone to watch or read the transcripts and share with others. This is a discussion that everybody needs to hear.

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