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

December 6, 2010 | 10:58 am

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.

FULL COVERAGE:

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

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