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Prop. 8: Judges question whether gay-marriage foes have legal standing [Updated]

Prop8hearing The first half-hour of the hearing on California's ban on same-sex marriage consisted of judges quizzing the lawyers who oppose gay marriage on the question of whether they have standing to appeal an earlier ruling that found Prop. 8 unconstitutional.
A three-judge panel of U.S. 9th Circuit Court of Appeals is hearing an appeal of an August ruling by U.S. District Court Judge Vaughn R. Walker, who ruled after a trial that the 2008 ballot measure defining marriage as only between a man and a woman  violated the U.S. Constitution.

If the anti-gay-marriage side has no legal standing to appeal, then Walker's ruling would stand. 
Many arguments focused on a Supreme Court decision, Arizonans for Official English, in which the court unanimously turned down a challenge to a ballot initiative making English the official language of Arizona. Justice Ruth Bader Ginsburg found defending the initiative is for the attorney general and the governor -- not supporters of an initiative.

A key moment so far was Judge Stephen Reinhardt asking if there is any case where such standing has been allowed.

InteractiveGraphic Charles Cooper, the attorney for the supporters of Prop. 8, said he knew of none, but that this could become that case.

Proponents of Prop. 8 also argued that Imperial County should be able to intervene in the case and defend Prop. 8.

But the request for intervention came from a deputy clerk, not the clerk, and judges questioned whether the deputy clerk had the authority, especially because the clerk did not seek to intervene.
"I believe [the clerk] should have the ability," said Robert Tyler, a lawyer for Imperial County. 
"How long do you think he would last [in that job], taking that action?" a judge asked, to laughter in the courtroom.

[Updated: 11:20 a.m.: In the second half-hour of the Prop. 8 hearing, judges grilled David Boies on the question of who has standing to appeal Judge Vaughn Walker's lower court decision tossing the law.

Both Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown (now the governor-elect) declined to appeal Walker's decision.

That prompted the judges to question who did have the right to appeal, an important point, they noted, given that a majority of California's electorate voted in 2008 for Prop. 8, which defined marriage as between a man and a woman.

"My problem is, in fact, the governor's and the attorney general's actions have essentially nullified the considerable efforts that were made on behalf of the initiative," said Judge N. Randy Smith, the most conservative judge on the panel.

He and other judges noted that neither Schwarzenegger nor Brown had the power to veto the proposition when voters approved it. But by declining to appeal the legal judgement, were they not effectively vetoing it?

Judge Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by "certifying" the question to the California Supreme Court.)

UC Irvine Law School Dean Erwin Chemerinsky noted: "This raises a possible outcome of today's argument that no one has yet raised. It would mean that the case would go to the California Supreme Court to answer the question of California law on who has standing to defend an initiative, and then come back to the 9th Circuit."]

In striking down Prop. 8, Walker said the ban violated the federal constitutional guarantees of equal protection and of due process.

Previous court decisions have established that the ability to marry is a fundamental right that cannot be denied to people without a compelling rationale, Walker said. Prop. 8 violated that right and discriminated on the basis of both sex and sexual orientation in violation of the equal protection clause, he ruled.

The jurist, a Republican appointee, cited extensive evidence from the trial to support his finding that there was not a rational basis for excluding gays and lesbians from marriage. In particular, he rejected the argument advanced by supporters of Prop. 8 that children of opposite-sex couples fare better than children of same-sex couples, saying that expert testimony in the trial provided no support for that argument.

"The evidence shows conclusively that moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples," Walker wrote.


Judges must decide whether backers of same-sex marriage have legal standing to appeal, UC Irvine Law School dean says

Arguments before court go well beyond gay marriage, Pepperdine professor says

Protesters on both sides of gay-marriage issue make their views known outside courthouse

-- Jessica Garrison

Photo: Hearing in San Francisco. CSPAN

Comments () | Archives (19)


Many of regular Americans think your GOD IS A FAKE!!!


I consider myself a religious person and understand people's issues with the 9th Circuit Court and gay marriage. But c'mon! All other issues aside - those signs in the photo, "one nation under God and not the 9th Circuit?" Do these ignormases not have any conception of separation of church and state?

Geeez enough already. Just let them get married. Marriage is a personal decision and has no impact on anyone elses life.
Besides, why should heterosexuals be the only miserable people?

Now I am not opposed to civil unions or domestic partnerships for gay couples as I feel this serves the purpose of recognizing gay couples to some extent short of defining them as married couples.

I think the people of California would like the traditional definition to stand even as they voted overwhelmingly even so slightly for the passage of Prop 8.

Passage of Prop 8 doesn't mean that gays are any less than married couples, it only means that the people are not ready yet to change the way things have always been(an probably always will).

I think California has made many gains with respect to gay couples, but the LGBT has tried to make gains too soon of which incremental gains are the best route.

Therefore, taking their cause all the way to the Supreme Court is perhaps too soon even as the rest of the country is still pretty much overwhelmed by too many issues which threatens its security. Gay marriage will have to wait(indefinitely).

Again, religious fanatics are trying to make EVERYONE believe what they do, even if it means forcing them into discriminating against their friends, co-workers, neighbors, and gay family members. SHAME on you. Disgusting actions by disgusting people, who are under the delusion that this is a religious state instead of a secular one.

If the Governor and Attorney General refuse to appeal a decision overturning an initiative for which the majority has voted, and, as a result, the appelants are deemed to lack standing, doesn't this disenfranchise those who passed the initiative?

Shouldn't an individual voter or group of voters who voted in favor of that initiative be able to stand in the place of the Governor or AG?

If you want to support marriage, then ban divorce. How does letting other people get married weaken marriage?

Plus, all of you people claimining that marriage is against the teachings in your bible, clearly have not read your bible very carefully.

As a Christian, it disturbs me that other so-called Christians would have such a hard line against recognizing equal treatment of others with respect to marriage. Go ahead and look for a passage where Jesus tells us to keep the gays down. I'll save you time - it's not there.

Posted by: Joe | December 06, 2010 at 11:29 AM

"Now I am not opposed to civil unions or domestic partnerships for gay couples as I feel this serves the purpose of recognizing gay couples to some extent short of defining them as married couples."

So you do think they need to be "short" of real married couples? Perhaps they should stay at the back of the bus, too, and not eat in the same places you do, and enter and leave through different doors?

"Passage of Prop 8 doesn't mean that gays are any less than married couples,"


Yes it does - you just said it did. And you're fine with that. You're fine with treating gays as subhuman. And you probably think you're a loving and tolerant person. As long as people are exactly like you.

"Gay marriage will have to wait(indefinitely)."

Yes, the nerve of gay people wanting to be treated as equal citizens in the eyes of the LAW (not your religion, but the laws of the land to which they, too, pay taxes and belong as citizens).

"We cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability on those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint"
-Justice Anthony Kennedy, writing for the majority of the U.S. Supreme Court in the decision overturning Colorado's Amendment 2 referendum

This argument is getting old.

1. In this country, marriage is a matter of civil law - a marriage is not recognized for legal purposes without a state issued license. The person performing the marriage may or may not have a religious affiliation and His/Her affiliation has no bearing on the legitimacy of the marriage.

2. The Gay marriage argument is on par with arguing whether "Gods" approval of a restaurant's menu selections should be a criterion for licensing the restaurant.

3. After a happy 17+ years of marriage to my lady, why would I want to deny that potential happiness to somebody else because of their choice of partner? It's difficult enough to find a partner, why restrict the choice due to the prejudice of people who have drunk way too much Kool-Aid?

The governor and the state refusing to appeal a court ruling is not the same as a veto. A veto is the governor using his own opinion to over force the legislature to re examine a proposed law. This then can be over ridden by the same legislature. Now this is just the Governor choosing not to interfere with the judicial branch of government who has the sole ability to judge the constitutionality of a law. The correct route to this type of situation is for the voters to then, if they choose vote in a governor who will challenge the law. This is the system that has held this nation in good stead for over 200 years. We only are in this problem to begin with because of the development of direct democracy. Regular voters should not have the power to deny rights to a minority group via proposition. That aside, proponents of prop 8 need to stop crying foul and play by the rules. Rally support in favor of electing a more conservative Governor. But we just had an election and this issue was in the debate, so the electorate chose to place into office a social liberal who will protect gays. So get over it conservatives, CA is a liberal state and we like our gays and want to see them treated equally.

If there is a constitutional right to marriage, then explain why a couple must first obtain a license from the government to exercise that right?

Constitutional rights do not need government permission.

Yawn... another issue that 90+% of the population could care less about

If marriage if defined as being between one man and one woman, what about my cousins first 3 ex-wives and his current (not yet ex) wife's 2 ex-husbands?

LOVE will win

The court, which chose to hear the case before allow­ing Judge Vaughn Walker’s initial decision to stand, could throw some wrenches in the case, though; namely, if they want, they can decide the case in such a way (by suggest­ing that support­ers fo Prop. 8 didn’t have the stand­ing to appeal the case) so that it doesn’t go to the Supreme Court, even if it legal­izes gay marriage in Califor­nia.

The yes on Prop 8 side will win! Also, there will be a surprise 2011 Golden Globe Award winner. He earned this award! He is the real mc coy! It will be a real shock!

Maybe Prop 8 still could get Jerry Brown impeached as Governor. That would be funny! That would really be a surprise. Will somebody please file the lawsuit that would stop Jerry Brown? The truth needs to be told now!


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