Proposition 8 Appeal Hearing in San Francisco

Today’s hearing on the appeal of the Proposition 8 federal case was quite dramatic — both from a policy and a legal perspective. The first hour of the argument was focused on the “standing” issue — whether or not the proponents of the initiative have a right to pursue this appeal, and the second hour focused on the core legal issues of the decision.

On the standing issue, the judges expressed serious concern over the validity of the appeal, asking whether there were any appellate decisions authorizing a proponent to pursue an appeal, and focusing in particular on whether the Imperial County deputy clerk has the right to appeal (where the state did not file an appeal). Many attorneys thought that once the trial court had allowed the proponents to intervene, they would have the right to appeal the decision — but it turns out this is not the law. And, now that the newly-elected governor and attorney general have both stated they would not support an appeal of Judge Walker’s decision, a favorable ruling on the standing issue could end the case altogether — leaving the trial court decision in effect.

Interestingly, the judges also appeared to be interested in whether or not the trial court’s decision is actually binding outside of Alameda and San Francisco counties, given that this is the region where the case was heard. It was suggested that the decision might not be directly binding on the other counties, but rather, would have to be enforced by the Governor if any county refused to honor the court’s ruling. This is not likely to be a significant matter, however. Rather, the main concern of the court was whether a denial of standing to the proponents would allow the Governor to effectively nullify the initiative, simply by refusing to defend the law in the face of a court challenge.

On the substantive side of the case, the proponents argued that there is no constitutional right to marry, and therefore this situation is not at all comparable to the mixed-race marriage decisions. They also argued that if there is any rational basis to justify the traditional definition of marriage, the court should not have the power to throw out Proposition 8 — and they definitely believe there is a very rational basis, which is the “natural production” of children resulting from heterosexual bonding. Most fundamentally, they argued that the “people” have the right to make the decision, and not a federal court judge.

The judges did not appear impressed with the proponents’ arguments. One judge asked what public policy is furthered by denying gay couples the “word” marriage, when they already have all the rights of marriage, and where the motivation behind the initiative seems to have been based upon bias against a particular group of people. Another judge referred to the United States Supreme case of Roemer, which prevented the state of Colorado from passing an initiative re-instating an anti-gay ordinance.

The Boies-Olsen team did a bang-up job, responding clearly to the judge’s questions and strenuously defending Judge Walker’s decision. They emphasized the Supreme Court’s long history of protecting the right to marry, as a fundamental aspect of our constitutional right to liberty and the pursuit of happiness. Thus, they did not rely solely on the state court’s prior ruling on same-sex marriage, but rather, on the broader federal right of access to marriage for everyone. But some of the judge’s comments suggest that they are more inclined to stick with the state court-related argument, and apply the Roemer case to invalidate Proposition 8 — but only because of the prior state court ruling on same-sex marriage. If this is the case, the ruling would only apply in California, and not in any other state.

The three-judge panel will issue its ruling in the next few months. Then, it is possible that a 11-judge court panel will re-hear the case and issue its own ruling — which then could be appealed to the United States Supreme Court.