December 6, 2010
By Adam Bink
Welcome to the live thread for the 9th Circuit hearing of the Perry v. Schwarzenegger case appeal. If you Googled “Prop 8 trial” for coverage and found yourself clicking on the first search result, welcome to Prop8TrialTracker.com!
Today, we’ll have four P8TT folks covering the hearing. I will be live-blogging the coverage and running the show here at the P8TT mothership; Courage Chair/Founder Rick Jacobs, who helped make P8TT the go-to spot by live-blogging the Judge Walker hearing from the courtroom, and Field Director Arisha Michelle Hatch will be sending in dispatches, including photos, from their seats in the courtroom and at the events outside prior to the trial commencing; and P8TT legal analyst/Calitics blog publisher Brian Leubitz will be adding legal analysis in this thread. I will also be occasionally live-tweeting via my handle @adamjbink. You can also follow @rickjacobs, @equalityontrial and @couragecampaign for updates, as well as Equality on Trial on Facebook. And of course, we look forward to dispatches in the comments from commenters Kathleen, Ann S. and other folks who will be there, and thoughts from the rest of you!
As a reminder, the first hour will be spent arguing the issue of standing, and the second hour on the issue of the constitutionality of Prop 8 itself. All updates you see are from me unless noted otherwise. New updates will scroll from the top.
12:46: The court stands adjourned. Stay tuned for more analysis here.
12:45: Cooper concludes by quoting from Romer re Amendment 2 in arguing that Amendment 2 went too far in singling out a class of people, but the effort to “protect” marriage does not.
12:43: Brian’s take on Olson’s closing arguments:
In the record, there has been no showing of harm. Could distinguishing marriage from Dps in name only, that it is rational to encourage safe procreation? That would still not be a rational basis. The word is the institution, but children are not shown to be better off.
The California system is irrational, because there are different classes. Heterosexuals can marry. Some homosexuals are allowed to be married if they married in 2008, but they can’t even remarry the same person if divorced.
The citizens of California who are behind one fence, gays and lesbians, can not take part in the institution that everybody else can. (Marriage) That is not allowed under the Constitution.
Question: Can we go beyond California? Can we go beyond the Roemer rationale, that is taking away a right?
Olson: Yes you can. You can go beyond California, and the Roemer rationale. It can not be justified under any standard. All of the arguments are neither rationale nor Constitutionally permissible.
12:42: Cooper will spent a few minutes rebutting. Starts out by saying that if Loving wanted to marry the man with whom he had sexual relations and the case was brought on those grounds, it would not have been ruled the way it was.
12:38: Therese Stewart, Chief Deputy City Attorney from the City/County of San Francisco steps up. The crux of her argument is that the only reason behind Prop 8 is animus towards same-sex couples- there is no rational basis. Notes that CA family law treats gay/straight couples as the same. Equal protection doesn’t allow the state to enact a measure based on a view that some people are unworthy. Her time spent arguing is short.
12:30: A quote from Olson so spot-on I typed verbatim (first part): “California has taken a class of citizens and put them in a separate category; that act of discrimination and there is no doubt that it is discrimination and there is no doubt that it does great harm, can it be justified under any standard of constitutional analysis and I argue it cannot be justified at the lowest standard of constitutional analysis.” He concludes his argument on an extension of this point.
12:28: Olson describes the “crazy quilt” of California laws e.g. some s-s couples who married can stay married, but if they get divorced they cannot get re-married, etc. in arguing that the current marriage system violates equal protection and due process under the 14th Amendment.
12:25: Brian dropped in this summary of the last 10 minutes or so:
Olson: Taking away rights because of their identity as homosexuals violates Crawford in light of Roemer. How can a constitution right be taken away because of the constitutional activity under Lawrence, sexual activity? It cannot be taken away because of their orientation. It discriminates on sex and sexual orientation. Proponents have come up with no rational reason to repeal decision.
You can’t wall off a right because children shouldn’t be exposed to sexuality. It just doesn’t stand up to even the lowest level of rational basis.
In Roemer, Justice Kennedy said that the reasons behind the measure must be rational. Reasons cannot come out from the sky. This is an important aspect of the “heightened” rational basis test emerging from the jurisprudence of Justices Kennedy and O’Connor. Essentially, the reason must come from the record, and from the background of the measure.
12:22: Olson argues that gays/lesbians having immutable characteristics + the damage done by discrimination= heightened scrutiny in this case. Can’t name any damage that would be done. Smith interrupts. Cites a number of various pro-Prop 8 arguments (children likely to thrive when raised by both father and mother, etc.) and asks if that would survive the rational basis test. Olson challenges such an argument re children/mother/father and says it’s easy to say those things, but “the remedy doesn’t fit the so-called problem… 30K children in same-sex households today… if you had s-s marriages, it doesn’t change where the children will be raised.”
12:16: Hawkins asks about the pro-creation argument that Cooper made. Olson replies that same-sex marriage will not keep opposite-sex people from getting married, getting divorced, having kids, etc. Points to Cooper’s concession “I don’t know” when asked in the lower court case what harm there would be.
12:13: Olson cites Lawrence v. Texas in arguing that a Constitutional right be taken away because of a Constitutionally protected “activity.” It’s not just a right of same-sex persons, it’s a right of all individuals. Ridicules pro-Prop 8 supporters’ argument that opposite-sex marriage must be protected in order to protect kids, saying if that were a sound justification, we should all be banning video games, comic books, and the like.
12:07: Olson deries Cooper’s discussion of “society’s interest in procreation.” He says rights are not California’s right, or the voters’ rights, but individual rights under the 14th Amendment, and denying marriage could take that away. Very sharp point.
12:04: Olson continues, the In re Marriage Cases makes all this (Prop 8 itself) worse. Olson says Cooper’s definition of marriage is wrong. Notes US Supreme Court has never said marriage is just between man and woman when ruling in the context of prisoners, contraception, divorce, other cases that marriage is (a) liberty (b) privacy (c) association (d) identity. Notes Supreme Court has said this 14 different times.
12:01: Ted Olson steps up to the plate. Off the bat, plainly notes that CA voters have enshrined discrimination into the Constitution. Voters have “denied access to what the Supreme Court has noted is the most important relationship in life.”
12:00: Brian Leubitz notes to me over e-mail, “The argument seems to be boiling down to the word. This is shaky ground for Cooper. He is now arguing that marriage (the word) is just special. He is arguing that marketing is somehow enough of a reason to discriminate. Cooper and Smith are going back and forth, looking at Roemer, and whether states can be damaged constitutionally by acting towards giving rights.”
11:59: Smith asks whether a state that doesn’t have domestic partnership benefits has a stronger argument for rational basis. Cooper says if this case is to be decided be “heightened scrutiny”, then it is a harder case to make. This concludes his remarks. Is given 2 minutes for rebuttal by the judges.
11:54: Reinhardt asks, isn’t it different when you take [marriage] away than when you’re giving it? Cooper replies that the people of California are “a tribunal over their Constitution.” Hawkins asks if this were about civil unions, would Cooper have the same argument? Cooper says yes. Hawkins asks if people denied the right of same-sex partners to visit one another in the hospital and had added that to the ballot language in Prop 8, what would Cooper say? Cooper replies that if rights “go beyond” what’s in the federal constitution, then the people have the right to return to what’s a general standard in all states- and that seems to be Cooper’s argument re what the people of California are doing here.
11:46: For those of you following along here and not watching, a quick image of what this all looks like (Cooper arguing):
11:44: Cooper seems to be arguing that the courts should respect the will of the people in passing Prop 8, and that in California, the people retain the ultimate power, so courts should defer when voters vote to amend the Constitution. Reinhardt acknowledges that the Constitution can be amended, but asks if there is a valid reason to amend the Constitution.
11:42: Brian’s legal analysis of this section:
Cooper: The central point is that the distinguishing characteristics of opposite sex couples. We are arguing that the rational basis test applies. There is some rational basis, so it must be upheld. Only if the court concludes that there is no rational basis, that there is nothing to say of the definition of marriage from time immemorial, there is no rational basis. But, we have a rational basis. The key reason of marriage was procreation. Society has an interest in a sexual relationship. It needs another generation. Society is threatened by an unintentional and unwanted pregnancy.
Cooper is bringing up the concept that “single parent families” need help. This is fascinating, and really, nowhere in the record.
Judge Reinhardt: That sounds like a good argument for prohibiting divorce. How does allowing marriage equality damage procreation.
Cooper: Opposite sex couples can procreate unintentionally, and create unwanted pregnancies.
Judge Smith: What is the purpose of the initiative that says they have the same rights as opposite sex couple, but they don’t get the title. What is the rational basis for just excluding the word marriage.
Cooper: The word is the institution. If you redefine the word, you change the institution. Historic Tradition.
11:39: It is difficult to follow Cooper’s argument- he is talking himself in circles. Or as Rick put it well to me, the only case he has is a tautology: marriage is between a man and a woman. If it’s not between a man and a woman, it’s not marriage.
11:36: Cooper replies that Amendment 2 (as passed by Colorado voters) was different because it was a sweeping case that affected all basics of civic life for [homosexuals] and that’s why it was struck down in Romer v. Evans.
11:35: Hawkins asks about the famous Romer case. Cooper replies that that case referred to a lot of rights. Hawkins interjects, if you take away a bunch of rights, it’s not okay, but if it’s one right [marriage], then it’s ok? Very interesting point from Hawkins and promising to see him say that.
11:33: Reinhardt asks why same-sex couples shouldn’t be allowed to be married and live together in a happy, healthy home. Cooper replies that same-sex couples cannot procreate w/o a 3rd party and that’s the rational basis. Smith asks what the rational basis is to deny marriage, if same-sex couples have all the rights that opposite-sex couples have, and we’re left with the word “marriage”. Cooper discusses re-definition of “the institution”. “You cannot separate the two” [referring to the name and the institution]. If we do, what we are left with is a genderless institution that bears no comparison to the real institution of marriage.
11:28: Cooper says a rational basis test must be applied here. There is a rational basis to limit definition of marriage to opposite-sex couples and it must be upheld.
11:25: And we’re back. Cooper is up to address the constitutional issue. Hawkins asks if people of California could re-institute school segregation by vote. Cooper concedes no, because the Supreme Court has ruled that’s unconstitutional. Hawkins asks how this situation is different. Cooper replies that this case is nothing like, for example, Loving v. Virginia, where the Supremes ruled that there is no rational basis for the gov’t to deny the right of a mixed-race couple to marry. It’s interesting that Hawkins led off with that.
11:14: While we’re on recess, Rick notes over e-mail to me that this is also the courtroom in which en banc hearings take place because it’s so gorgeously ornate. The losing party can appeal to the full 9th Circuit and obtain an en banc hearing of 11 judges.
11:07: Ten-minute recess before the 2nd hour addressing issue of constitutionality. Lots to process.
11:06: Cooper is back up. He says Reinhardt nailed distingushing Karchner and Arizonans. Nobody in Arizonans found any law that showed proponents could appeal. Cooper brings a State Court Supreme Court, the Strauss case. The proponents were allowed to intervene in Strauss. He says if 9th Circuit doesn’t agree with him on standing, then they should ask CA Supreme Court before dismissing this case and allow a single district court decision (Judge Walker’s ruling) to nullify the will of 7 million Californians.
11:04: Here’s Brian Leubitz’s summary:
Boies: CA Supreme Court gave a one sentence denial as to forcing the AG to appeal, there was no rationale provided.
No clerks are technically bound by the injunction, save Alameda or LA. However, the remainder of the state, the power to execute the laws go to AG and Governor. The deputy clerks will be required to act by the AG and Governor. Clerks are ministerial, as defined by Lockyer case. They are required to act as the Governor and/or AG tells them. Thus, the deputy clerk of Imperial County should not be allowed.
Nullification Question: Does AG and Governor not defending nullify the people’s decision in the form of Prop 8? Boies says no, because they have seen the district court’s decision and are not bound under California law to seek further decision. The Supreme Court could have required AG action, but did not do so.
Scope of the injunction:
Boies: If the court concluded that the district court exceeded subject matter jurisdiction, but Boies is not aware of any precedent to edit the injunction. He is relying on AG to affect the injunction. The injunction goes to those who are controlled by the defendants, in this case the AG.
11:01: Boies wraps up by saying this case is similar to In re Marriage Cases. Proper “respondents” are AG, Gov, legislature. Appellants here do not have a particularized injury that the Supreme Court said you must have.
10:57: Reinhardt asks, doesn’t the injunction affect all those who act to perform the marriage (e.g. doesn’t it cover Vargas, the county clerk, and therefore she has standing?). Boies: The injunction itself didn’t go as broad as it might have, so no. Caveat, we haven’t talked about the registrar, who will under this injunction, have to change the form and content of the marriage license. Boies also notes that CA Supreme Court could have ordered the Gov/AG to intervene and defend, but didn’t.
10:55: Reinhardt jokes that if Boies has to depend on the AG and Gov (to not appeal), he’s lucky the  election came out the way it did. Ha.
10:52: Boies notes that one does not have standing to act as defendant unless he/she/organization has “personal, concrete, or particularized injury.” Which, he’s arguing, an Imperial County clerk and ProtectMarriage.com does not have. He notes that U.S. Supreme Court has ruled in this manner over and over.
10:51: Boies notes that in the Arizona case, Justice Ginsburg said proponents aren’t authorized to act under state law.
10:45: Boies replies, citing other California-specific cases in which proponents did not have standing. Reinhardt suggests that perhaps the 9th Circuit court should ask the California Supreme Court about what the standing law is. Notable: “The fact that there’s no one to defend doesn’t give standing [to the defendant-intervenors].”-Boies
10:42: Smith continues that the governor has an effective veto if he does not appeal.
10:41: Smith discusses how if Prop 8 (and all initiatives) could not be vetoed or amended by the legislature, right? So if that’s so, the AG’s actions and Gov’s actions have nullified the basic efforts of the initiative to be placed on the ballot and to obtain passage. He’s arguing that if Jerry Brown and Schwarenegger didn’t appeal, they effectively nullified it.
10:39: Boies is arguing that because all the clerks are ministerial officials who simply issue marriage licenses to whomever the state determines gets marriage licenses, that function will be the same now or later. Meaning, their duty will not be impacted, as Tyler is arguing.
10:37: Boies: Lockyer tells that county clerks are just “ministerial officials… who must apply the law as set forth by the AG’s office and the government.”
10:33: David Boies is up. Bring it, Boies. He is quickly asked if Judge Walker is wrong about the registrar controlling the functions of county clerks and she is not bound by the injunction, and if she is not, how does she have standing? Boies says that’s correct, and she does not have standing. Reinhardt asks, are the clerks of Alameda and Los Angeles counties bound by injunction? Boies says no. Marriage is a statewide, not local/municipal, concern. Hawkins asks if the injunction was enforced, could county clerks refuse a marriage license to a same-sex couple. Boies says yes, but if she did so, the AG would act to make the enforcement uniform, which would be a state proceeding.
10:30 Brian sent in his analysis of the last 15 minutes:
Robert Tyler: Attorney for Imperial County, actual client is a deputy clerk. Their client is Ms. Vargas, a deputy clerk. Judge Hawkins is grilling him on whether Imperial County even has the right client.
Judge Smith: “All political functions remain vested in an officer.” Imperial County doesn’t have authority to act without the clerk. Here, the clerk has not given power to the deputy clerk. Deputy is a mere agent, and cannot act without the clerk.
The judges are looking at whether the deputy clerk is bound as a state officer. But the bigger issue seems to be that the Imperial County intervention doesn’t actually have the clerk here.
“When you are asked a question, and you don’t know the answer, say so.” Highlight of the day.
10:29: Closing up, Tyler argues (the crux of his case) that the county clerk will be affected by the outcome of this case, which will alter Vargas’ (the county clerk) duties as she is placed in a conundrum. Hawkins asks, yes or no, whether Vargas is bound by Walker’s injunction (pointing out that she isn’t placed in a conundrum). Tyler concedes no, she is not.
10:28: Reinhardt asks if Board of Supervisors agrees with the Imperial County clerk. Tyler says yes, in fact she is appointed by the BOS. Then he’s handed a note saying, no, she’s elected, and tells the judges so. Whoopie.
10:26: Reinhardt is lambasting Tyler for not knowing the answers and instead of saying he doesn’t know, jumping around the issue. Hawkins asked if a deputy clerk in Los Angeles or Alameda county come in and seek standing, saying they don’t agree with “my boss”? Tyler says yes. Hawkins asks, humorously, how long they would last taking such an action? Ha.
10:24: Interesting exchange:
Judge Smith: Are they state officers performing state functions?
Tyler: No, they are local officers performing state functions.
S: How do I get around the language [in what I'm reading] that they ARE state officers?
T: They are performing state functions, e.g. marriage.
S: So they’re state officers if they do that?
T: I don’t know if that’s what the case turns on. This case turns on whether her duties will be altered as a result of this outcome of the case.
Reinhardt: Clerk is not attempting the court to get the ruling. In Lockyer, it’s the opposite.
T: In Richardson v. Ramirez, there were 3 clerks who were sued. SecState required registration by felons in order to vote. In that case, a local county clerk was able to take the case when there were no other defenders. Same thing here! We have a case where there is a county clerk wanting to intervene who will be affected by the outcome of the case.
10:18: Robert Tyler, arguing for Imperial County to have the right to have standing for representing the entire state. He is getting pressed hard by Judge Hawkins on whether the individual he is representing (the clerk in Imperial County) actually has the ability to act, which Judge Smith is appearing to concur with.
10:14: Brian Leubitz, P8TT’s legal analyst, sent in the following analysis:
Cooper: Looking at two standing issues. First, the big issue of whether the 9th Circuit, the standing issues that we’ve been talking about for a while now. However, Cooper is interested in looking at the district court jurisdiction as well.
On the 9th Circuit: Cooper is looking at a New Jersey case that was decided before Arizonans for Official English. The big question here is whether proponents of a measure have standing, and Cooper is asked as much. His response is rather stunning: “I don’t have a case to show Article 3 standing for proponents.”
Now, in Arizonans, Justice Ginsburg says that proponents do not have Article III standing, that is to say whether they have standing under the judiciary article of the Constitution. Cooper is trying to avoid that comparison, by pointing to the prior New Jersey case (Karcher). In Karcher, the Legislative officers were given standing. As noted, Karcher was before Arizonans, so it must be read in context of Arizonans.
Cooper is pointing to the Strauss case in state court, where the proponents successfully defended Prop 8 in state court. The California Supreme Court allowed proponents to defend Prop 8, but blocked other anti-equality groups from intervening, showing that proponents have special standing.
10:13: Cooper finishes and would like to reserve the balance of his time for rebuttal, which is granted by Judge Reinhardt.
10:11: Cooper is asked if he sought to enjoin the case. He replies no. He notes that the NJ Attorney General declined to appeal the case (Karcher v. May), just as the CA AG (Jerry Brown, currently) declined to appeal. And yet the Supremes noted that the NJ legislative leaders did have the authority and were the proper parties not just in the trial court, but in the 3rd Circuit. He continues, when no one else would defend the statute in the Strauss case, the only party defending the constitutionality of the statute in Strauss were the proponents. In the marriage cases, at the court of appeals level, court of appeals denied intervention to a group that was not the official proponents, but made no ruling whether the official proponents in the default of the state officials would be authorized to come in and represent the state’s statute.
10:06: Cooper is asked if he knows of any California law that allows Article 3 standing. Cooper argues that the Strauss case is similar. Judge interrupts and notes that Strauss only talks about proponents as agents of a proposition, not as agents of the state, which defendant-intervenors are asked to do here. Cooper is being interrupted repeatedly and pressed hard to make the case that this case is similar to the ones he is citing.
10:03: Interrupted and asked to explain the case further, Cooper is asked for the “best case” example of a federal case re allowing proponents Article 3 standing. Cooper says he doesn’t have one, but this is the one he’s bringing forward.
10:00: Charles Cooper gets up to speak. He notes that the two “jurisdictional” issue at stake, as we all know, are (a) standing (b) constitutionality. With respect to the standing issue, he notes a Supreme Court case in which New Jersey state education officials were required to defend the moment of silence statute. The court allowed the Assembly speaker/Senate president on behalf of the legislature to defend the state’s interests on the statute. Supremes rejected the claim that they did NOT have standing. Reason is b/c NJ Supreme Court previously allowed the legislative officers to intervene on behalf of the legislature to represent the state’s interests in a redistricting case.
9:59: And here we go. Gavel and all rise.
9:54: Arisha writes in that about 20 members of the public who got up early enough were lucky enough to gain entrance into courtroom one to watch the historic hearing live. Evidently, some staunch equality supporters began lining up at 4 am to get a seat. Other hopefuls are being sent into several media overflow rooms
to view the hearing. As a reminder, you can watch on C-SPAN, the California Channel streaming online (which now has images of the scene Rick describes below).
9:39: Arisha writes in that there are six total attorneys for the plaintiffs (us) and three for the defendant-intervenors.
9:38: More on the scene inside the courtroom from Rick (for those of you who are wondering why the verbal description, they don’t allow photography inside the courtroom):
9:14: Another dispatch from Rick on what things are looking like inside: “We’re in the courtroom. It’s a small room, with baroque, vaulted ceilings, oranate plaster arches that surround three deep hued mosaic images of the history of justice in this state. Arisha and I are seated in the first two seats of the front row right behind the plaintiff’s family.
9:07: I’ve got photos rolling in from Arisha I’m starting to get up. Here’s Paul Katami, one of the plaintiffs, with AFER at a pre-trial presser:
And crowds of marriage equality supporters:
Also, it’s our very own Kathleen along with Ann S. from the comments!
9:06: Rick sent in the following: We are in line now behind the plaintiffs and lawyers waiting to check in. A half dozen satellite trucks, a hundred or so at a demonstration for our side. A huge garbage truck just went by and fog horn honked in support of our side. Standing next to Imperial County lawyers who said, “we’re in a funny position. We’re defendants but we’re not part of the case.” To which another apparent lawyer said, “tell me about it. We’re here to uphold the law.
9:05 AM PST: A few more items of note before the trial starts in less than an hour.
- If you missed yesterday’s preview of how things will proceed to today, you can find it here.
- A few months ago in the period between the Walker ruling and today, we had NCLR’s Shannon Minter (who was the lead attorney on the original 2008 In re Marriage Cases, the case striking down restrictions on same-sex marriage at the California Supreme Court) and deputy Chris Stoll stop by to answer your Prop 8 legal questions on standing, appeal process, timeline, what strict scrutiny means, and more. If you’ve got a question about what’s coming up, you can probably find that question answered in the thread.
- My colleague Chris also has some useful FAQ on potential outcomes.
- The defendant-intervenor brief filed for this hearing can be found here. The response brief filed by Olson/Boies et al can be found here.
- NOM has their own questions for the hearing. And of course, you can leave a comment telling them what you think.
- If you’re feeling nostalgic or want some feeling for how courtroom back-and-forth may go, you can read Prop8TrialTracker’s live-blogging of the original hearing with Judge Walker from inside the courtroom itself. All those threads can be found here. That was the trial that led to more than 4 million pageviews and 80,000 comments here.
- Recalling that Judge Walker struck down Prop 8 on both equal protection and due process grounds, it’s worth recalling Judge Walker’s conclusion in his ruling as we enter this one: “Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.” On due process: “Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as ‘the right to same-sex marriage’ would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy — namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages.”