Ninth Circuit panel considers Proposition 8

Tonight, I watched the replay of the oral argument before the Ninth Circuit in the appeal of a district court decision overturning Proposition 8. The argument consisted of two phases – standing and the merits.
As to standing, even the liberal judges seemed slightly offended by the notion that, through a refusal to defend a Proposition enacted by the people of California, the Governor and Attorney General could cause the demise of that Proposition. The Governor and Attorney General cannot veto such a proposition. Yet a ruling that only these officials can defend the proposition would effectively give them that veto.
It may be that the ruling of the two liberal judges on the panel – Reinhardt and Hawkins – with respect to standing will be driven by their eagerness to decide the merits. During the second phase of the argument, they seemed fairly eager to decide them.
I found the argument on the merits a bit frustrating. Chuck Cooper, for the appellants, seemed to struggle to present clearly the state’s interest in banning gay marriage. Judge Smith – the one non-liberal on the panel – seemed to suggest to Cooper that the fact that California recognizes civil unions, and is liberal with respect to other rights of gay couples, renders irrational the withholding of the word marriage (as Smith put it). When he questioned Ted Olson, for the plaintiffs/respondents, however, Smith seemed less convinced that this is a problem for appellants (I don’t think it is). But I’d be surprised if either of the liberal judges on the panel concludes that Proposition 8 is supported by a rational basis.
There was only a little bit of discussion of whether a rational basis would be sufficient. However, the questioning focused on that standard, and I thnk the judges more likely than not will apply it, with perhaps an alternative holding by one or more of the liberal judges that applies stricter scrutiny.
Ted Olson’s argument was passionate, but struck me as question-begging. He kept saying that the Supreme Court has repeatedly extolled the virtues of marriage and viewed it as a fundamental right. But this case – unlike those cases – implicates the question of what is marriage. Thus, I think it begs the question to assume that, in discussing marriage in past cases, the Supreme Court was talking about gay marriage, as opposed to only marriage as it has always been understood, namely the union of members of the opposite sex.
Judge Reinhardt seemed to be toying with the idea of basing a ruling on the fact that, prior to the enactment of Proposition 8, the California Supreme Court had found a right of gay marriage under the state constitution. This means, he suggested, that a right has been taken away which, in turn, makes Proposition 8 more difficult to defend than if the state court had not so ruled.
This argument makes no sense to me. Once the people of California speak through a Proposition, I don’t see how prior pronouncements of the state supreme court that are overturned by the people have any impact. However, Reinhardt’s point may have some legal support because Cooper felt compelled to argue that the people of California were acting like a reviewing court correcting an incorrect interpretation of the state constitution. This seems like an artificial, and argubly incorrect, description of what the voters were doing through Proposition 8.
I came away from the argument thinking that it is rational to believe that Proposition 8 advances the state’s interest of protecting the institution of marriage as it has always been understood, as well as the interests of children. I also think it is rational to believe that Proposition 8 doesn’t advance either interest.
If I were a voter confronted with Proposition 8, I would want to decide which of these views is correct (or more rational). If I were a judge, I would not make that determination, but would instead uphold the constitutionality of Proposition 8 under the rational basis standard


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