Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel Dec. 6 that the reason proponents of Proposition 8 have proffered to justify their ban on same-sex marriage is "nonsense."
That reason, said Olson, reading from a page in the argument brief filed by attorneys for the Yes on 8 coalition which promoted passage of California's ban on same-sex marriage, was that same-sex marriage "will make children prematurely preoccupied with issues of sexuality."
"If believed," said Olson, "that would justify the banning of comic books, television, video games, and even conversations between children."
And that was not exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, noted Olson, was "protecting children" from the notion that marriage between same-sex couples was ok.
So, what should the court consider as the reason behind denying same-sex couples the right to marry, asked Judge Michael Hawkins.
"Should we look just at the record in the district court," he asked, or should we "imagine whether there is any conceivable rational basis" to ban gays from marriage?
Olson urged the court not to use its own imagination to figure out whether there might be any conceivable rational reason but to look at the reasons proffered by the Yes on 8 proponents and to determine whether they "make sense" and whether they are "motivated by fear" or a dislike of gay people.
"Protecting our children," said Olson, "is not a rational basis. It's based on the idea there's something wrong with" gay people.
Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday's argument before the federal appeals court than they did in January and June before U.S. District Court Judge Vaughn Walker. It was Walker's ruling in August —that California's ban on same-sex marriage violated the U.S. Constitution—that brought them to the appeals court in San Francisco Dec. 6. Unlike at the district court trial, where the U.S. Supreme Court forbid any television or web broadcast, the appeals proceedings were carried live on national television by CSPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.
Any pre-courtroom second-guessing that observers may have harbored over the political leanings of the three judges seemed to be put to rest fairly quickly, as the judges vigorously challenged each side's arguments on both matters before the court—Yes on 8 and Imperial County's legal qualification (standing) to appeal and the validity of Walker's declaration that Proposition 8 violates the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution.
Judge N. Randy Smith, an alum of the Mormon-run Brigham Young University, came out swinging hard questions for Cooper over Yes on 8's claim to have legal standing to press the appeal. Then he pitched equally hard questions to Olson's comrade David Boies, about the "problem" created for the court by the fact that neither the state's governor nor attorney general appealed the district court decision themselves. Even though neither has the power to veto an initiative, said Smith, they both nullified the initiative by not appealing it.
Boies tried to make the point that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown made their decisions not to appeal after Judge Walker declared the initiative to be unconstitutional.
Judge Stephen Reinhardt, widely perceived to be a staunch liberal, seemed to agree with Smith, saying the governor and attorney general's refusal to appeal the district court decision "does not seem to be consistent" with the state's initiative system. And should the court find that Yes on 8 and Imperial County both lack the legal qualifications to appeal, the judges said, the appeals court has no cause to rule on the merits of the dispute.
Boies argued that the concern about what the governor and attorney general did was a "different issue" than standing. And on the issue of standing, said Boies, Yes on 8 and Imperial County have no standing to bring the appeal, simply because they can't meet the standard of demonstrating a real injury from the decision below.
It was not an easy sell. Hawkins expressed frustration that the court might not be able to render a decision on the merits "so it's clear, in California, who has the right to marry and who doesn't."
Yes on 8 attorney Charles Cooper had argued that, because the California Supreme Court had, in an earlier, related court proceeding given Yes on 8 the right to intervene in the Perry v. Schwarzenegger case to defend Proposition 8, it intended to convey standing, too. By the end of the first hour of the proceeding —which was devoted to standing—the panel seemed inclined to ask the California Supreme Court to certify whether it intended Yes on 8 to have standing.
The three judges were equally tough in questions about the merits of Judge Walker's decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to reinstitute segregation in public schools.
"No," said Cooper.
"Why not?" asked Hawkins.
"Because it would be inconsistent with the U.S. Constitution," said Cooper.
"As interpreted by the U.S. Supreme Court," interjected Hawkins.
"Yes," conceded Cooper.
But in 1870, the U.S. Supreme Court probably would not have interpreted the constitution to forbid segregation, would it? asked Hawkins.
Cooper conceded that was probably true.
"Well, how is this different?" asked Hawkins.
Gay legal activists seemed pleased with how the arguments went Dec. 6.
Evan Wolfson, head of the national Freedom to Marriage Project, said that, overall, he thinks "it looks promising, both on standing and on the merits."
©2010 by Keen News Service. All rights reserved.
