Oral arguments before 9th Circuit in Perry v. Schwarzenegger

[All-American]

One of the judges on the three-member panel is N. Randy Smith, born in Logan, UT, graduate of BYU and the J. Reuben Clark School of law. Interesting.

Right now, they're discussing standing.

[MarkGrace]

Right now, they're discussing standing.

Sounds riveting.

[Coach McGuirk]

Sounds riveting.

Wait till they sit down.

[Indy Coug]

Right now, they're discussing standing.

One foot versus two?

[TripletDaddy]

Does anyone have a link to a live feed of this discussion?

There has been a rumor that the courts were going to discuss Abstention and I will be BUMMED if they wind up talking about Colorado River or Thibodaux/Burford abstention and I can't see it live.

[All-American]

Does anyone have a link to a live feed of this discussion?

There has been a rumor that the courts were going to discuss Abstention and I will be BUMMED if they wind up talking about Colorado River or Thibodaux/Burford abstention and I can't see it live.

http://www.c-span.org/

The head judge, interestingly, was asked to withdraw on account of his being married to the head of the ACLU in Southern California (and refused to do so).

http://www.latimes.com/news/local/la...,4871397.story

[MarkGrace]

Wait till they sit down.

And stand up. And walk into the jaws of hell. And wipe us out anytime. The raindrops.

[TripletDaddy]

http://www.c-span.org/

The head judge, interestingly, was asked to withdraw on account of his being married to the head of the ACLU in Southern California (and refused to do so).

http://www.latimes.com/news/local/la...,4871397.story

Thanks for the link.

I don't blame the guy for not wanting to withdraw in the middle of orals.

[Commando]

Thanks for the link.

I don't blame the guy for not wanting to withdraw in the middle of orals.

[New Mexican Disaster]

One of the judges on the three-member panel is N. Randy Smith, born in Logan, UT, graduate of BYU and the J. Reuben Clark School of law. Interesting.

Right now, they're discussing standing.

I sat next to him on a plane to San Francisco last year. We talked for a couple of hours. He is a real nice guy. He grew up in Grace, Idaho, the same as my father in law. It's a small world.

[All-American]

I sat next to him on a plane to San Francisco last year. We talked for a couple of hours. He is a real nice guy. He grew up in Grace, Idaho, the same as my father in law. It's a small world.

His questions for the respondents have thus far been the most pressing. It's not really possible to tell how the judges will vote from the oral arguments, but I wouldn't be surprised to see a 2-1 vote upholding Judge Walker's ruling, with Smith dissenting. Next stop will be SCOTUS.

[scottie]

Appeals Court judges appear inclined to support gay marriage

SAN FRANCISCO -- With a menu of legal options, a federal appeals court on Monday appeared generally inclined to support the right of same-sex couples to marry in California. But how the judges reach that historic conclusion remains unpredictable.

In more than two hours of legal sparring, lawyers on both sides of the battle over the state's ban on same-sex marriage were pressed by each of the three 9th U.S. Circuit of Appeals judges hearing the challenge to Proposition 8. The 9th Circuit is reviewing the appeal of a federal judge's ruling last summer striking down the proposition as a violation of the constitutional rights of gay and lesbian couples to equal protection under the law.

As cameras televised the federal court proceedings, the judges struggled with many aspects of the case, including whether the sponsors of Proposition 8 have the legal right, or "standing," to even appeal Chief Judge Vaughn Walker's ruling. Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, the governor-elect, have refused to defend the state law on appeal -- troubling to both the panel's most conservative member, Judge N. Randy Smith, as well as its most liberal, Judge Stephen Reinhardt.

Voters approved Proposition 8 in November 2008 by a 52 to 48 percent margin.

"What we have here is the attorney general and governor with no ability to nullify the acts of the people, and then by not appealing, they do it," Smith, an Idaho-based judge, told David Boies, one of the lawyers for same-sex couples challenging the law.

Added Reinhardt: "That does not seem consistent with the initiative system. "... It's just tossing in the towel."

But the judges also seemed skeptical that Proposition 8's backers can defend the state law, and were even more skeptical of Imperial County's argument that it could step in and lead the appeal. At one point, Proposition 8 lawyer Charles Cooper had to concede to Judge Michael Daly Hawkins that he had no legal precedent to support his argument that sponsors of a ballot measure can defend a state law in federal court.

Cooper had even more difficulty when the 9th Circuit turned to the central question in the case: whether Proposition 8 is unconstitutional. Cooper argued that society has a "vital interest" in limiting marriage to heterosexual couples because it encourages procreation and increases the prospect that children will be raised by both their mother and father.

"That sounds like a good argument for prohibiting divorce," Reinhardt said sarcastically when child-raising came up.

Smith, an appointee of former President George W. Bush, also repeatedly challenged Cooper. Smith was particularly troubled by the fact that California has broad protections for same-sex couples under its domestic partnership laws, yet forbids them to marry.

"What is the rational basis then if homosexuals have all the rights heterosexual couples have?" Smith asked. "We're left with a word: marriage."

...

[All-American]

Appeals Court judges appear inclined to support gay marriage

It would be an interesting tactical decision on the part of the panel to balk on the issue of standing and refuse to consider the merits of the equal protection and due process arguments. If they rule on standing, they leave the right to same-sex marriage intact and place consideration of the constitutional issues on hold.

I'm not sure how much to make of the fact that the judges were "struggling" with the issues at hand. That's kind of their job. They're supposed to weigh, push, and scrutinize. You can perhaps glean a little bit from who is doing the weighing and the pushing, and the issues on which they are speaking, but I don't know how much to read from that. The article basically says that all of the judges appeared skeptical on all of the issues. Essentially, you can understand from the article that Ted Olson (arguing against Prop 8) put on a much better performance than any of the other attorneys in the case.

[Jacob]

I listened to most of the oral arguments and a few things troubled me.

1. There was some argument over whether some states might be constitutionally prohibited from banning gay marriage while such a ban might be permissible in other states. This seems like a ridiculous outcome to me. Limiting marriage to opposite sex couples is either constitutionally permissible or it is not and the rule must apply to all states.
Perhaps the judge was merely trying to make a point by dwelling on this question. But a related line of argument was that, under Romer, the right to gay marriage discovered/proclaimed by the Cali Supreme Court could not now be taken away. This leads to the same result: If a state has granted the right, it can't take it away, but it may prohibit the marriages if it never granted the right in the first place. Such legalistic baloney. After all, we should be dealing with the national constitution here, which shouldn't be defined differently from state to state based upon what the given state constitution/court says.

2. The gay marriage proponents--while superior lawyers--tried to avoid at all costs calling the thing gay marriage. I can understand why they are doing that. They are arguing that they are not seeking a newly proclaimed right--gay marriage--they are simply asking that their clients be allowed to marry. But this is no more than a word game. Neither party is disputing that there is a fundamental right to marry--perhaps we should return to that question--but the question that must be answered, in my view, is whether that right to marriage under the US Constitution means that states must certify gay marriage exactly the same as traditional marriages. It bothered my that Olsen seemed to be avoiding the real question.

And a big part of the problem is that none of the arguments seem to stem from the constitution itself. Rather, the arguments stem from cases. I'm not saying that we shouldn't look to case law or that we shouldn't follow precedent. I'm saying that when we ignore the document itself and only use the case law, we end up at a place far from the document.

[All-American]

I listened to most of the oral arguments and a few things troubled me.

1. There was some argument over whether some states might be constitutionally prohibited from banning gay marriage while such a ban might be permissible in other states. This seems like a ridiculous outcome to me. Limiting marriage to opposite sex couples is either constitutionally permissible or it is not and the rule must apply to all states.
Perhaps the judge was merely trying to make a point by dwelling on this question. But a related line of argument was that, under Romer, the right to gay marriage discovered/proclaimed by the Cali Supreme Court could not now be taken away. This leads to the same result: If a state has granted the right, it can't take it away, but it may prohibit the marriages if it never granted the right in the first place. Such legalistic baloney. After all, we should be dealing with the national constitution here, which shouldn't be defined differently from state to state based upon what the given state constitution/court says.

2. The gay marriage proponents--while superior lawyers--tried to avoid at all costs calling the thing gay marriage. I can understand why they are doing that. They are arguing that they are not seeking a newly proclaimed right--gay marriage--they are simply asking that their clients be allowed to marry. But this is no more than a word game. Neither party is disputing that there is a fundamental right to marry--perhaps we should return to that question--but the question that must be answered, in my view, is whether that right to marriage under the US Constitution means that states must certify gay marriage exactly the same as traditional marriages. It bothered my that Olsen seemed to be avoiding the real question.

And a big part of the problem is that none of the arguments seem to stem from the constitution itself. Rather, the arguments stem from cases. I'm not saying that we shouldn't look to case law or that we shouldn't follow precedent. I'm saying that when we ignore the document itself and only use the case law, we end up at a place far from the document.

I noticed what you're referring to with point 1. I can agree with the idea that the legal injury is a little bit more grave when taking away a benefit previously enjoyed than when refusing to grant the benefit in the first place, but I don't think that this will be a dispositive issue. Olson was wise not to spend much time fighting over that inch of ground. Ultimately, you're absolutely right: if the right to marriage stems from the Due Process clause, then it makes little difference if the right was once enjoyed but then revoked, except to serve as an indicator of the animus that allegedly motivated the proposition.

I think everybody noticed that this is all a "word game." Smith asked what I thought was an especially pointed question: what's the difference between granting civil unions with all the rights of marriage but maintaining the distinction, and calling every such relationship marriage? The position of the opposition to Prop 8 is not that government should recognize gay marriage just as it does straight marriage, but that the definition of marriage ought to be broad enough to include the union of both gays and straights. It's wordplay, absolutely, but I'm not sure that every party involved in this issue isn't in on the game.