perry v. schwarz

Is It Worth Watching Today’s Prop 8 Hearing?


Perhaps you’ve heard, the Ninth Circuit Court of Appeal will today hear oral arguments in Perry v. Schwarzenegger, that little Prop 8 case everyone is betting on to decide same-sex marriage in this country once and for all? Spectators are tres excited!

Mostly because it means Ted Olson and David Boies get to say more wonderful things about homosexuals, and more derogatory things about bigoted heterosexuals. And while you’re invited to tune into the hearings live on C-SPAN (10am PST, 1pm EST), you’re being advised not to expect a whole lot of newness here. Because while the Ninth Circuit will handle things a bit differently than Judge Vaughn Walker’s courtroom — this three-panel judge is mostly concerned with determining whether has the “standing” to bring the case, and will determine whether the case can move forward, or whether Walker’s decision should stand, or even none of the above! — today’s hearings are mostly procedural, and attorneys for both sides are going to repeat the positions they had during their time in front of Walker. Which doesn’t mean you should ignore today’s live feed entirely! It’ll be fun to look back on that time liberal activists judges Stephen Reinhardt and Michael Daly Hawkins grilled Andrew Pugno while N. Randy Smith, a former Idaho Republican Party chief, talks about the “special rights” to same-sex marriage the plaintiffs are seeking.

You can watch the hearings live here.

UPDATE: And now that today’s hearings have wrapped, has the climate changed? Not so much: things are looking good for us. I liked the part where Reinhardt, addressing the issue of standing, asked whether there was any precedent in which supporters of a ballot measure, and not the governor or attorney general, was allowed to take a side in court. Protect Marriage’s Charles Cooper said he didn’t know of any — but this could be the case! Good luck finding Supreme Court precedent, bud. David Boies also fielded that question, relays the LAT.

“My problem is, in fact, the governor’s and the attorney general’s actions have essentially nullified the considerable efforts that were made on behalf of the initiative,” said Judge N. Randy Smith, the most conservative judge on the panel. He and other judges noted that neither Schwarzenegger nor Brown had the power to veto the proposition when voters approved it. But by declining to appeal the legal judgement, were they not effectively vetoing it? Judge Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by “certifying” the question to the California Supreme Court.)

And it was definitely Reinhart whom stole the show: After Cooper argued that “when a relationship between a man and a woman becomes a sexual one, society has a vital interest,” the judge responded, “That sounds like a good argument for prohibiting divorce. But how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?”

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