News


Prop. 8 hearing drawing crowds outside Federal courthouse in San Francisco

3-judge panel deciding on appeal of earlier ruling banning measure's enforcement

A large crowd has gathered this morning outside a federal courthouse on Seventh Street in San Francisco, where a three-judge appeals court panel will hear arguments on the constitutionality of California's Proposition 8.

The proposition, approved by voters in 2008, banned same-sex marriage in the state, but a federal judge in San Francisco declared the ban unconstitutional earlier this year. That ruling is now being appealed to the 9th U.S. Circuit Court of Appeals.

More than 100 people, mostly opponents of Proposition 8, rallied outside the courthouse prior to oral arguments this morning.

Same-sex marriage supporters carried signs with messages such as "Life feels different when you're married," and "We all deserve the freedom to marry."

A smattering of opponents also showed up, carrying messages including "Ninth Circuit vs. God's law" and "Homo sex is sin."

Proposition 8's sponsors are appealing U.S.District Judge Vaughn Walker's August ruling striking down the same-sex marriage ban. Walker ruled that the initiative violated the U.S. Constitution's guarantees of due process and equal treatment.

A three-judge panel will hear arguments from both sides this morning and will be asked to decide among the dueling definitions of marriage and the right to marry.

The judges, who were selected randomly, are Stephen Reinhardt, a leading liberal on the court appointed by President Jimmy Carter in 1980; Michael Hawkins, a moderate appointed by President Bill Clinton in 1994; and Randy Smith, a conservative named by President George W. Bush in 2007.

Their decision will be issued in writing at a later date. The losing side is expected to appeal to an 11-judge panel of the 9th Circuit and to the U.S. Supreme Court.

The three-judge panel will devote an unusually long two-hour session to the arguments today.

"At the heart of this case are two competing definitions of marriage," Charles Cooper, the lead lawyer for sponsors of Proposition 8, told the court in a brief filed last month.

The measure's sponsors are appealing U.S. District Judge Vaughn Walker's ruling that struck down California's voter-approved ban on same-sex marriage in August. Walker said the 2008 initiative violated the U.S. Constitution's guarantees of due process and equal treatment.

Two same-sex couples who sued to challenge Proposition 8 define marriage as a union with one's chosen partner.

The original defendants in the couples' federal lawsuit were state officials, including Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, but they declined to defend Proposition 8 or to appeal Walker's ruling.

The couples' lawyers say the U.S. Supreme Court has stated in 14 different cases that "marriage is a fundamental right of all individuals."

One of those cases was the landmark Loving vs. Virginia decision of 1967, when the U.S. Supreme Court overturned Virginia's ban on interracial marriage and said, "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival."

But the Proposition 8 sponsors say the right affirmed by the Supreme Court in all those cases is only a right to heterosexual marriage, because the very definition of marriage is that it is the union of a man and a woman.

Cooper wrote in his brief that the same-sex couples are seeking to introduce gay unions into the right to marry "in a manner utterly inconsistent with history and precedent."

The three judges of the 9th U.S. Circuit Court of Appeals who will hear the case were randomly selected.

They are Stephen Reinhardt, a leading liberal on the court who was appointed by President Jimmy Carter in 1980; Michael Hawkins, a moderate appointed by President Bill Clinton in 1994; and Randy Smith, a conservative named by President George W. Bush in 2007.

Their decision, to be issued in writing at a later date, will not be the end of the case. The losing side can appeal to an 11-judge panel of the 9th Circuit and to the U.S. Supreme Court.

The three-judge panel will devote an unusually long two-hour session to the arguments.

The first hour is designated for arguments on whether the Proposition 8 sponsors and their committee, Protect Marriage, even have a right to appeal, and whether Imperial County has the right to join the case to defend Proposition 8.

In the second hour, attorneys will argue the constitutionality of Proposition 8.

The two couples claim, and Walker agreed, that Proposition 8 violates two different clauses of the Constitution's 14th Amendment.

The first is the due process right that protects fundamental liberties, which the couples say should include their right to marry.

The second is the right to equal protection of the laws. The couples say gays and lesbians were unfairly singled out for exclusion from marriage.

But the Proposition 8 sponsors say that any allegedly differential treatment can be justified if voters had a rational basis for approving the measure in 2008.

That basis, the sponsors contend, is voters' belief that restricting marriage to heterosexual unions promotes "responsible procreation and child-rearing" values that children receive from their married biological parents.

The plaintiffs' lawyers contend that banning same-sex marriage doesn't help heterosexual marriage and does hurt the thousands of children in the state who are being raised by gay and lesbian parents.

"There is no legitimate interest that is even remotely furthered by Proposition 8's arbitrary exclusion of gay men and lesbians from the institution of marriage," attorneys Theodore Olson and David Boies wrote in a brief to the court.

Proposition 8, enacted as an amendment to the California Constitution, provides that "only marriage between a man and a woman is valid or recognized in California."

The lawsuit challenging it was filed by Kristin Perry and Sandra Stier of Berkeley and Paul Karami and Jeffrey Zarrillo of Burbank.

A 12-day nonjury trial held by Walker in January was the nation's first trial on a federal constitutional challenge to a state ban on same-sex marriage. Walker's ruling overturning the initiative has been put on hold during the appeal.

Although there are two more possible layers of appeal -- an expanded 9th Circuit panel and the Supreme Court -- neither panel is obligated take up further appeals. The full appeals court could decide to leave the three-judge panel's future ruling in place, and the Supreme Court could leave the 9th Circuit's final ruling in place.

But Boies, in a telephone news conference on Friday, predicted that the high court will take up the issue of same-sex marriage soon, in either the California case or another lawsuit.

"The question is whether it's this case or the next case," Boies said.

Ari Burack/JuliaCheever, Bay City News

Comments

Like this comment
Posted by Dave
a resident of Birdland
on Dec 6, 2010 at 12:44 pm

Interesting to note that one of the judges, Judge Reinhardt's wife is the head of the American Civil Liberties Union of Southern California, and had offered legal advice to the plaintiffs in this case. Normally, a judge would excuse himself from cases such as this, but not in this case. Talk about lack of impartiality!!


Like this comment
Posted by PW Reader
a resident of Birdland
on Dec 6, 2010 at 1:04 pm

Several legal scholars have divided opinions on this subject of recusal.

See Web Link

Does one recuse oneself because one's spouse has a particular opinion on an issue? Judge Reinhardt has declared that he can be impartial. Is the issue then one of impropriety or a duty to sit and adjudicate?


Like this comment
Posted by Dave
a resident of Birdland
on Dec 6, 2010 at 1:23 pm

Interesting that Reinhardt says "I will be able to rule impartially on this appeal, and I will do so." He said a memo explaining his decision more fully is forthcoming. How long has he known he would be on this case? How much time does he need to script his impartially?
This is like the fox saying "I'll watch your hens for you"! Impartial, highly doubtful!


Like this comment
Posted by WTF???
a resident of San Ramon
on Dec 6, 2010 at 2:28 pm

I know a man who honestly wants to marry one of his goats... the furry white and brown one. Doesn't he have the right to do so and be as miserable as the majority of the other married people in the U.S.?? Why should the misery of marriage be inflicted upon only us hetrosexuals? I mean won't the attorneys still prosper from divorce whether it is homo or hetro (or other)? Money is money and that is all this is about.


Like this comment
Posted by Really?
a resident of Another Pleasanton neighborhood
on Dec 6, 2010 at 5:25 pm

Judge N. Randy Smith is a conservative who went to BYU. Should he excuse himself since his religious beliefs state that he show discrimination against other fellow Americans? Impartial? Highly doubtful!


Like this comment
Posted by Cholo
a resident of Livermore
on Dec 6, 2010 at 6:14 pm

I watched with interest but I didn't understand much of the 1st hour. The second hour made more sense.

The attorney representing the proponents of Prop. 8 was bright and slick. I still don't understand why so many Americans are against LGBT citizens getting married? Stumps me?

I have a hunch that this case will go to the US Supreme Court. I think that the attorneys against Prop. 8 won their case today.8






Like this comment
Posted by Cholo
a resident of Livermore
on Dec 6, 2010 at 6:28 pm

incidentally dave, take an aspirin and go to sleep...you'll feel better in the morning...are you and your husband getting along these days?

tee hee hee, tee hee hee...


Like this comment
Posted by Me Too
a resident of Another Pleasanton neighborhood
on Dec 6, 2010 at 8:09 pm

@Really - I would say yes, if he went to BYU and a Mormon then there is definitely a high probability of impartiality in this case, just as Reinhardt has extreme prejudice.

This case needs to be looked at in the context of the law and the Constitution (not that much really applies to the Constitution these days).

And really, should it be this hard to decide a case? let's jsut be done with it either way and move on.


Like this comment
Posted by A Neighbor
a resident of Another Pleasanton neighborhood
on Dec 6, 2010 at 8:40 pm

Me Too wrote: "This case needs to be looked at in the context of the law and the Constitution (not that much really applies to the Constitution these days)."

On the contrary, if the justices rule that the Prop 8 supports do not have standing to bring the case to court, it will be precisely because the law makes it clear what constitutes the parties to an action.

Because Prop 8 was law, only the governor and the state's attorney general have the legal standing to defend the law, and they have both declined. If they find the supports have no standing, the justices will have no option but to let the repeal stand, and the rule of law triumphs.


Like this comment
Posted by Cholo
a resident of Livermore
on Dec 7, 2010 at 10:08 am

Is this stuff that happens in courts cool or what? This is not a perfect country but it is a great country. VIVA AMERICA! VIVA!


Like this comment
Posted by dublinmike
a resident of Dublin
on Dec 9, 2010 at 10:48 pm

dublinmike is a registered user.

Bottom-line, denying humans the right to a union is unconstitutional and morally reprehensible. Marriage is non-governmental concern. Prop 8 is a violation of the rights of humans.

Any any nut-bag that brings up goats, dogs, cats, human minors as a potential partner is, is, is.. a nut-bag.

Cheers...


Like this comment
Posted by SteveP
a resident of Parkside
on Dec 10, 2010 at 9:08 am

SteveP is a registered user.

dublinmike, you can engage in whatever union you and your life partner agree on, just don't call it marriage. Nice attempt at redefining what is morally reprehensible and your Freudian reference to nut bags. Good luck with your civil union with the species of your choice.


Sorry, but further commenting on this topic has been closed.

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