Three-Judge Appeals Court Panel Hears Prop. 8 Challenge

Copyright © 2010 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

“The United States Supreme Court has determined that intimate sexual relations between people of the same sex is constitutionally protected, and that marriage is a fundamental right,” said attorney Theodore Olson before a three-judge panel of the United States Court of Appeals, Ninth Circuit, December 6. “So how can a constitutionally protected right be taken away because of a constitutionally protected activity?”

Olson was arguing the appeal of the case he and fellow attorney David Boies filed in federal court shortly after the passage of Proposition 8, the 2008 ballot measure which amended the California constitution to define marriage as the union of one man and one woman. The hearing was scheduled for two hours but actually ran considerably longer than that. It was divided in two parts. The first, argued by Boies versus attorneys Charles Cooper and Robert Tyler, dealt with the question of standing — legal-speak for the right to sue. The second, argued by Olson and San Francisco deputy city attorney Therese Stewart against Prop. 8 and Cooper defending it, was about the merits of the case and whether Prop. 8 violated the constitutional rights of Gay and Lesbian Californians by denying them the right to marry partners of their choice.

The judges hearing the case were Stephen Reinhardt, appointed by President Jimmy Carter; Michael Hawkins, appointed by Bill Clinton; and N. Randy Smith, appointed by George W. Bush. Smith was expected to be the least sympathetic to the arguments against Prop. 8, but some of Reinhardt’s questions to Olson were at least as tough as Smith’s.

Defending Prop. 8, Cooper said, “Americans are engaged in a very profound debate on the nature of marriage. The fundamental question is whether the definition of marriage is for the people to decide, or whether the Constitution takes that issue out of their hands.” Cooper’s assertion that the voters of California had the right to define marriage any way they liked prompted Judge Hawkins to ask if they would likewise be able to re-impose racial segregation in public education — and Cooper had to concede that the U.S. Supreme Court had long since decided that was unconstitutional.

Much of the argument on the merits turned on the 1996 U.S. Supreme Court ruling in Romer v. Evans, in which the high court overturned a Colorado initiative that essentially prohibited all branches of the state government from protecting or advancing the civil rights of Queer people. Olson argued that by taking away the right of marriage from California same-sex couples after they had already had it for four months, Proposition 8 essentially did the same thing as the Colorado initiative thrown out in Romer: it deprived people of a constitutional right they already had.

Cooper argued that the law in Romer was “far more sweeping than the definition of marriage that has existed since time immemorial.” He added that “if there is any rational basis for the traditional definition of marriage, then [Prop. 8] must be upheld” — but, as he had in the original trial before District Judge Vaughn Walker, he scrambled to find any rational basis for limiting marriage to opposite-sex couples.

“If you take away a right from a class [of people] in a manner that’s biased — and you can sometimes derive that view of bias from the action itself — then you cannot do it,” said Judge Reinhardt. He pointed out that under California’s domestic partnership law, Gay and Lesbian couples “have all the aspects of marriage except the title. What is the reason to take away the title?”

“The people of California needed no reason beyond the fact that their state supreme court had invalidated the traditional definition of marriage,” Cooper replied.

The judges appeared mixed on the merits of the issue but skeptical of the decision by Judge Walker that since the California state officials responsible for enforcing the law, Governor Arnold Schwarzenegger and Attorney General Jerry Brown, had refused to defend Prop. 8 in the courts, the initiative’s proponents had no standing to do so.

I will try the forces

Of these thy compounds on such creatures as

We count not worth the hanging,—but none human,—

To try the vigour of them and apply

Allayments to their act, and by them gather

Their several virtues and effects.

Cor. Your highness

Shall from this practice but make hard your heart;

Besides, the seeing these effects will be

Both noisome and infectious.



How like a jade he stood, tied to the tree,

Servilely master'd with a leathern rein!

slap that hind end say I



The Hunted Hair... from Venus and Adonis swine to gore,

Whose tushes (tusks) never sheathed he whetteth still,



And when thou hast on foot the purblind hare,

Mark the poor wretch, to overshoot his troubles

How he outruns the wind and with what care

He cranks and crosses with a thousand doubles:

The many musets through the which he goes

Are like a labyrinth to amaze his foes.



Sometime he runs among a flock of sheep,

To make the cunning hounds mistake their smell,

And sometime where earth-delving conies keep,

To stop the loud pursuers in their yell,

And sometime sorteth with a herd of deer:

Danger deviseth shifts; wit waits on fear:



For there his smell with others being mingled,

The hot scent-snuffing hounds are driven to doubt,

Ceasing their clamorous cry till they have singled

With much ado the cold fault cleanly out;

Then do they spend their mouths: Echo replies,

As if another chase were in the skies.



By this, poor Wat, far off upon a hill,

Stands on his hinder legs with listening ear,

To harken if his foes pursue him still:

Anon their loud alarums he doth hear;

And now his grief may be compared well

To one sore sick that hears the passing-bell.



Then shalt thou see the dew-bedabbled wretch

Turn, and return, indenting with the way;

Each envious brier his weary legs doth scratch,

Each shadow makes him stop, each murmur stay:

For misery is trodden on by many,

And being low never relieved by any.



Lie quietly, and hear a little more;

Nay, do not struggle, for thou shalt not rise:

To make thee hate the hunting of the boar,

Unlike myself thou hear'st me moralize,

Applying this to that, and so to so;

For love can comment upon every woe.



Puzzled wondering why

So many heads are hollow,

So many mean are walking beasts,

So much brutality blots the land,

Such epidemics of violence,

Such vertigos of sensuality

Inoculate and intoxicate the race.