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
photo coutesy of mrbill via Flickr