Well, that was interesting. Let the analysis and commentary and discussion begin. If you haven’t had a chance to view or listen to or read about what went on in San Francisco today, check the links out first.
It will probably take some time for the rulings. Even though they heard both arguments today, they don’t have to issue rulings on both at the same time. (They kind of had two different trials back-to-back today.) One legal pundit said (before the trial) that he could imagine a 3-0 ruling against standing, but could not imagine a 3-0 ruling in either direction based on the merits of the case.
First, the justices have to decide whether the yes on 8 folks or the Imperial County Deputy Clerk are even allowed to bring the appeal to court in the first place. If they decide the prop 8 folks (proponents) had no right to appeal to begin with, then Walker’s ruling stands as is. I doubt they’ll find the county clerk had standing, but they could go either way on the proponents rights’ to appeal. If they say there’s no right to appeal, they can avoid ruling on SSM altogether. I suppose the proponents could appeal that decision either to the full 9th Circuit or to the Supreme Court. There were a couple of questions which indicated the Federal District Court judges needed some clarification on California law from the state’s Supreme Court. The question there was whether there’s a difference between proposition supporters in California and proposition supporters in Arizona. (The Supreme Court already said that under Arizona law proposition supporters had no right to appeal a constitutionality case because of Arizona laws. Apparently California
laws are not as black-and-white, and that might mean the difference between the two states, both of which are in the 9th Circuit.) On the other hand, if they say the proponents have no right to appeal, there’s the question about whether citizens are subject to the whims of a District Attorney who won’t defend the law; and, if the DA isn’t defending the law, is that different from the DA not enforcing the law. If the DA won’t defend the law, how is a court to be assured the
DA will enforce the law?
So, assuming the courts eventually decide the proponents had a right to bring the appeal at all, then the judges sit down and look at the constitutionality arguments. The proponents seemed to argue that there is a rational basis (a legal term of art) to differentiate between same-sex marriage and opposite-sex marriage. Their arguments centered around the “unique” procreative powers of a man/woman pair and how the state has an interest in creating stable relationships where children - even unwanted children - are cared for by biological parents and not by the state. (Because children in single-parent families need more resources from the state.) They also cited tradition - marriage has been between male/female from “time immemorial.”
The justices tried to get both sides to explain why the word “marriage” is so important, particularly when California has such broad domestic partnership benefits. This was something Mormon judge N. Randy Smith raised questions about several times. I’m not sure he got a very clear answer, other than that marriage is important because children deserve to be raised by their biological parents.
The Olson/Boies team argued that marriage is an individual right, not a right of the state, and that removing the rights of anyone to marry was not different from removing a whole passel of rights that were litigated over in the Romer case in Colorado. The US Supreme Court said that removing that bundle of rights from homosexuals was unconstitutional. Olson told the court they could decide the case narrowly, saying that Prop 8 removed an already existing right under
California’s constitution, just like Romer, and that because of the Romer situation, Prop 8 was unconstitutional in California. There would be no need to find a federal constitutional right to marriage. However, Olson also argued that the case needn’t be narrowly defined (and that he’d prefer a broader decision). He suggested that denying
same-sex couples to marry was unconstitutional under the 14th Amendment and the district court could come to that conclusion.
Proponents argued that SSM was different from inter-racial marriage because children can occur in inter-racial opposite sex marriages (but, at the same time, trying to regulate OSM sexual reproduction would require “Orwellian” tactics which violate citizens’ rights to privacy and a bunch of other stuff). One example they cited was a case where two homosexual men wanted to marry, but the Supreme Court said they couldn’t. That case went through courts in the late 1960s/ early 1970s, as I recall, after the case that struck down anti-miscegenation laws but before more more recent cases that have found homosexuals have rights to do whatever they want to behind closed doors and they cannot be discriminated against because of those rights.
Then San Francisco’s assistant attorney came in, and she did a much better job this time than she’s done in earlier situations. She pointed out to the justices that California law does not care how kids get into families - whether they’re adopted, IVF’d or traditionally built - the law just wants them to be taken care of. She argued that since California’s Family and Health codes don’t distinguish between childrens’ parents, it would be irrational for the state to prevent marriages solely on the basis of the ability to pro-create naturally.
The justices seemed to be searching for a distinguishing rational basis argument, and if I were on the court, I wouldn’t have been convinced by Cooper’s (proponent’s) arguments, particularly in light of the trial court’s record. Smith even suggested that the word marriage might be kind of an advertisement about creating secure relationships or something along those lines, but nobody took that bait. There were some questions about where the judges should look to find evidence of harm which might show a rational reason for creating two separate classes of unions, but Olson pointed out that the Supreme Court directed reasoning had to be real- not just something someone somewhere might, under the right conditions, pull out of the blue sky.
If the judges deny proponents’ standing to appeal, Judge Walker’s decision could stand and same-sex marriages could begin again in California as soon as the injunction is lifted. However, proponents will likely try to appeal such a decision, so we’d have to wait for either the en banc panel from the 9th Circuit or the Supreme Court to give thumbs up or down on standing.
If the judges decide that the appeal is legal, then they look at the merits of the case. Whatever decision they make there will almost certainly be appealed either to the full district (which can decide whether or not to hear the case) or directly to the Supreme Court. It appears from arguments that there are several ways the decision could go: First, overturn Walker’s decision entirely and say Prop 8 is constitutional, therefore no more same-sex marriages in California; Second, decide narrowly that Prop 8 took away constitutional rights and that Californians can resume same-sex marriages, but other states cannot/don’t have to; Third, decide broadly that denying marriage to same-sex couples is a violation of the U.S. Constitution and that all states must allow SSM, regardless of what their constitutions say about definitions of marriage.
Maybe there are other possible decisions as well. What do you think?