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Court Hears Prop 8 Appeal

Court Hears Prop 8 Appeal

A three-judge panel from the 9th Circuit Court of Appeals heard argument in San Francisco from the defendant-intervenors in Perrv v. Scharzenegger.  During the two plus hours of argument the judges addressed two primary issues: whether the defendants had standing to appeal the ruling, and, if so, did Judge Walker correctly rule that Proposition 8 violate equal protection and due process.

As to the issue of standing, the entire first hour of argument was devoted to examining just who had the ability to appeal.  That’s because both Governor Schwarzenegger and Attorney General Jerry Brown decided not to defend Proposition 8.  Brown has said that once he is sworn in as governor that he will keep that position, as will the new Attorney General Kamal Harris.

In order for defendants to have standing they must be able to show some specific, identifiable harm from the ruling appealed.  It is almost impossible to separate out this argument from the argument made by opponents of Proposition 8 that the ballot measure was grounded in an unconstitutional segregation of a class of individuals based on impermissible grounds–ie their status as homosexuals.

The judges seemed skeptical that the defendants had standing to appeal Judge Walker’s ruling and the most directed questioning was levied at this issue.  That’s not to say that the judges were easy on the Proposition 8 opponents.  They were not.  Of their greatest concern was whether or not by refusing to defend the suits the governor and the attorney general were enacting a de facto veto of an otherwise valid voter initiative. It’s an interesting question and one worthy of exploring since the ramifications stretch beyond this case and into the balance and separation of power of just who can legislate and who can not.

But perhaps the most interesting argument came as Ted Olson picked apart, line by line, the arguments advanced that Proposition 8 did not violate the Fourteenth Amendment.  The bulk of his argument focused on jurisprudence that specifically states procreation is not a compelling state interest when it comes to marriage which is a fundamental individual right grounded in liberty and freedom.  As Olson pointed out, if proponents of the ballot measure have their way, the state of California could theoretically decide the state is overpopulated and therefore grand no marriage licenses to any couples, gay or straight.

At this point the three-judge panel can either rule on its own or refer the matter the the full Circuit Court of Appeals.

For more analysis on Proposition 8 please see Care2′s own Steve Williams

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photo coutesy of mrbill via Flickr

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51 comments

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9:07AM PST on Jan 7, 2011

Keeping these couples from getting married is not going to make them change their sexual orientation. They are still going to be together whether they are married or not. Not all heterosexual couples that get married are Christian, so are they going to be banned from getting married as well?

11:14PM PST on Dec 13, 2010

Thanx for the info

12:33AM PST on Dec 12, 2010

I wonder if anyone really has the political will to decide the issue. So far all the pandering to each side makes it look as though the whole thing is being tried in the "House of Pancakes, with an extra order of waffles!

11:29PM PST on Dec 11, 2010

All men are created equal in the constitution. Which means that every MAN and woMAN is entitled to marry whom ever they want. so either everyone gets to marry, or no one.

11:12AM PST on Dec 11, 2010

Government does not belong in the bedroom.

5:02PM PST on Dec 8, 2010

The legitimacy of the love two people share for each other is up for a vote and a constitutional amendment? RIDICULOUS! How can the people that have not had "feelings" for the same-gender purportedly answer for the ones that do? No "town-hall" meetings or referendums were ever held in order for society to tell me whom to date or whom to marry. Why do I think so highly of myself to do that to someone else? I do not profess to have all the answers and understand all things - - but true love WILL find a way, whether you personally agree with it or not.

Which way, my friend? A Gay/Lesbian individual was "forced" (by familial and societal pressure) to ignore his/her true feelings and they marry a person of the opposite gender and they eventually become a parent to children. Along the way, however, they have (same-gender) affair after affair on their opposite gender spouse and after some years, the "truth comes out", the couple divorces, and the children are crushed.

On the other hand, a "healthy-minded" Gay/Lesbian couple in the neighborhood has a marriage ceremony at their church, buy a nice bungalow to start their lives together in, and have adopted two malnourished children originally from Ghana. They remain together until death parts them - - and the children are ever thankful for the blessed life they were given by their adoptive parents.

Which couple appears to be honest and above board? Do some actually want us to believe these two shouldn't ever be marr

4:54AM PST on Dec 8, 2010

Thanks for the info.

7:55PM PST on Dec 7, 2010

That's what I was wondering Dean. I am a bit confused.

6:46PM PST on Dec 7, 2010

As a bisexual woman in a monogamous, heterosexual marriage that has produced no biological children because I have an infertility issue, I feel quite invested in this issue. And the facts are these: when we celebrate love, marriages and families are stronger. When we denigrate love, the country suffers.

Janice A--YES! I loved when the court panel asked the proponents of Prop 8 if the voters would be allowed to vote to re-segregate the schools, and after a moment of uneasy silence he said of course not.

5:45PM PST on Dec 7, 2010

Do U know the real issues?

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