{"article":{"id":243306,"heading":"Three-Judge Appeals Court Panel Hears Prop. 8 Challenge","author":"Mark Gabrish Conlan\/Zenger's Newsmagazine","created":"2010-12-08 20:58:13","modified":"2013-11-11 01:05:52","last_modified":"Mon, 11 Nov 2013 09:05:52","article":"

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.<\/p>\n","contact":"mgconlan@earthlink.net","link":"http:\/\/zengersmag.blogspot.com","address":"P. O. Box 50134, San Diego, CA 92165","phone":"(619) 688-1886","parent_id":0,"mime_type":"text\/plain","summary":"A quick overview of the Ninth Circuit Court of Appeals hearing on the constitutionality of Proposition 8, based exclusively on what I saw and heard during the C-SPAN telecast of the hearing and written without reference to any legal \u201cexperts\u201d or political pundits.","numcomment":1,"fileurl":"\/uploads\/","filesize":null,"article_url":"\/news\/2010\/12\/243306.php"},"attachments":[],"comments":[{"id":243310,"heading":"marriage is a fundamental right","article":"I will try the forces \r\nOf these thy compounds on such creatures as \r\nWe count not worth the hanging,\u2014but none human,\u2014 \r\nTo try the vigour of them and apply \r\nAllayments to their act, and by them gather \r\nTheir several virtues and effects. \r\nCor. Your highness \r\nShall from this practice but make hard your heart; \r\nBesides, the seeing these effects will be \r\nBoth noisome and infectious. \r\n\r\n\r\nHow like a jade he stood, tied to the tree, \r\nServilely master'd with a leathern rein! \r\nslap that hind end say I\r\n\r\n\r\nThe Hunted Hair... from Venus and Adonis swine to gore, \r\nWhose tushes (tusks) never sheathed he whetteth still, \r\n\r\n\r\n\r\nAnd when thou hast on foot the purblind hare, \r\nMark the poor wretch, to overshoot his troubles \r\nHow he outruns the wind and with what care \r\nHe cranks and crosses with a thousand doubles: \r\nThe many musets through the which he goes \r\nAre like a labyrinth to amaze his foes. \r\n\r\n\r\nSometime he runs among a flock of sheep, \r\nTo make the cunning hounds mistake their smell, \r\nAnd sometime where earth-delving conies keep, \r\nTo stop the loud pursuers in their yell, \r\nAnd sometime sorteth with a herd of deer: \r\nDanger deviseth shifts; wit waits on fear: \r\n\r\n\r\nFor there his smell with others being mingled, \r\nThe hot scent-snuffing hounds are driven to doubt, \r\nCeasing their clamorous cry till they have singled \r\nWith much ado the cold fault cleanly out; \r\nThen do they spend their mouths: Echo replies, \r\nAs if another chase were in the skies. \r\n\r\n\r\nBy this, poor Wat, far off upon a hill, \r\nStands on his hinder legs with listening ear, \r\nTo harken if his foes pursue him still: \r\nAnon their loud alarums he doth hear; \r\nAnd now his grief may be compared well \r\nTo one sore sick that hears the passing-bell. \r\n\r\n\r\nThen shalt thou see the dew-bedabbled wretch \r\nTurn, and return, indenting with the way; \r\nEach envious brier his weary legs doth scratch, \r\nEach shadow makes him stop, each murmur stay: \r\nFor misery is trodden on by many, \r\nAnd being low never relieved by any. \r\n\r\n\r\nLie quietly, and hear a little more; \r\nNay, do not struggle, for thou shalt not rise: \r\nTo make thee hate the hunting of the boar, \r\nUnlike myself thou hear'st me moralize, \r\nApplying this to that, and so to so; \r\nFor love can comment upon every woe. \r\n\r\n\r\nPuzzled wondering why \r\nSo many heads are hollow, \r\nSo many mean are walking beasts, \r\nSo much brutality blots the land, \r\nSuch epidemics of violence, \r\nSuch vertigos of sensuality \r\nInoculate and intoxicate the race. \r\n","author":"E. Monday","parent_id":243306,"mime_type":"text\/plain","created":"2010-12-09 01:04:58","modified":"2013-11-11 01:05:52","fileurl":""}]}