December 6, 2010

The oral argument in the 9th Circuit in the Prop 8 case is about to begin.

The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.

UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.

UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.

It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.

In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?

51 comments:

MadisonMan said...

You know who would make a good SC Justice? Olson. He can argue both sides of an issue.

I don't expect Obama to take my suggestion, however.

Ignorance is Bliss said...

Isn't Perry v.Schwarzenegger a bit misleading, seeing as how they're both on the same side?

traditionalguy said...

But will this case on Prop 8 seduce the Court into an intercourse of discussions of standards in oral argument, all as a foreplay to the issuance of their seminal decision?

AllenS said...

Let the Muslims handle this case.

Original Mike said...

I had to google Prop 8 to see what it was about.

David said...

Law Day at Althouse Blog.

Four in a row, counting Islamic law.

ricpic said...

The will of the people must not stand!

doofus said...

Amending your constitution is...unconstitutional.

madawaskan said...
This comment has been removed by the author.
madawaskan said...

Basically...bah...

I forfeit my last comment. Ugh.

Quayle said...

Another substantive "right" that has been floating undetected in space, but that (thanks our astronomer-judges who can authoritatively gaze into the cosmos of human rights) will soon be pull from the ether and granted to the long-awaiting masses.

Marc said...

Charles Cooper (for the supporters of Prop 8) has a very conversational, confident style and has thorough, substantive responses right at his fingertips. Oral argument is spectacularly difficult, especially with an antagonistic bench.

Meade said...

traditionalguy said...
But will this case on Prop 8 seduce the Court into an intercourse of discussions of standards in oral argument, all as a foreplay to the issuance of their seminal decision?

In addition, did we just see famous lawyer, David Boies pick something - a pubic hair? - off his own famous silver tongue?

Marc said...

Okay, so that Olson guy ain't too shabby either -- he could go places. Rough quote: "If you're going to justify depravation of constitutional rights based on a fear that children may be exposed to issues of sexuality too soon [apparently an early justification expressed by Prop 8's supporters], you'll have to support censorship of comic books, TV media, and conversations with other children as well." [Laughter from the peanut gallery.]

Still, he's relying much more on emotion, quips and rhetoric than did the other side. He's also criticizing Cooper's oral argument directly for some reason, which seems tacky. More case law would be more persuasive.

t-man said...

Reinhardt was bound to recuse himself. His refusal to do so is another easy basis for the Supreme Court to reverse a decision against Prop 8.

Rialby said...

"Oral argument is spectacularly difficult"

That's not what his boyfriend said...

Marc said...

Hang on, why is Keith Olbermann joining in the oral argument? Sure he presents well, but is he even an attorney? He is sure to get another suspension from MSNBC for this blatant advocacy --

Oh, wait... it's Therese Stewart, a San Francisco City Attorney, wearing Olbermann's suit, glasses and haircut. Never mind.

Trooper York said...

It's kind of depressing to be talking about oral and you have Ruth, Sonia and Elena invovled.

At least when Souter was there they had someone who knew what he was doing.

Allegdly.

Coketown said...

So the issue here is whether the proposed amendment to CA's constitution violates the US constitution? Is that an accurate summary? If so, what are the consequences of this going to the SCOTUS and being decided either way? Would it solely affect the states so far as same sex marriage is concerned? Or would its scope extend beyond marriage and affect virtually any proposed amendment a state might make to its constitution? I'm not proficient in law so have no effing clue here.

Moose said...

*sigh* Ok. I'll play.

Where's that blow-by-blow commentary professor?

Coketown said...

Moose: Ann is too busy booing, hissing, and throwing cans of Pabst at her television to update with comments. She's really not as mild-mannered and reserved as she lets on. Once her hands stop shaking from RAGE and INDIGNATION she'll update...I'm sure.

Original Mike said...

...and throwing cans of Pabst at her television "

Now, there's a funny image.

Chip Ahoy said...

Yes, I feel it now. My spidey senses are beginning to pick up a faint trace of a theme.

Ann Althouse said...

I didn't say I'd update in the comments. I meant I'd write an update later to comment on the oral argument. But it was extremely long, and I've just now gotten to the end. I will work on an update now.

Ann Althouse said...

"throwing cans of Pabst at her television"

If I was going to drink beer during the day -- which I wouldn't -- I wouldn't drink canned beer. And if I drank bottled beer, I would pour it in a glass.

What I ate and drank during the 2 hours of oral argument that took me 4 hours to watch: Hot chocolate, an omelet, water, and chocolate.

c3 said...

At first glance of the headline I thought "Perry Mason", not "Perry" and, of course, my immediate next thought was:

he never loses

Salamandyr said...

: "If you're going to justify depravation of constitutional rights based on a fear that children may be exposed to issues of sexuality too soon [apparently an early justification expressed by Prop 8's supporters], you'll have to support censorship of comic books, TV media, and conversations with other children as well." [Laughter from the peanut gallery.]

We censor all those things now (okay, not the conversations with children part).

Titus said...

I would do one of the male plaintiffs.

I wonder if they are into an "open marriage"?

But I am not. Just something to jerky jerky off to.

Titus said...

Ted Olson looks like a dykey wykey.

Fen said...

Ted Olson looks like a dykey wykey.

His wife, Barbara, was on the flight that slammed into the Pentagon on 9/11.

Mock someone else please.

fivewheels said...

I've been listening to mp3s of Supreme Court oral arguments I downloaded from Oyez.com. They're pretty interesting for a lay guy. One thing that I find surprising is how short they are. These are literally the biggest issues of law ever, and they get wrapped up in a half-hour or whatever it is. Somehow I naively imagined long, detailed back-and-forths between intellectual titans or something like that. Not so much. Now I kind of see why Thomas doesn't bother to participate.

I do sort of enjoy the spectacle of these high-powered lawyers getting up there in the biggest moments of their careers -- the Supreme Court! -- and all that happens is they get constantly interrupted by the Justices and basically pantsed by smarter guys like Breyer and Scalia.

I'm listening to Grutter and Gratz today.

Chip Ahoy said...

Off topic comment because people need to know! Fake Assange twitter account. Hilarity ensues.

Sample entries:

* Mum asked me to file away financial statements somewhere safe. I nailed them to the front door.

*Not feeling myself today. Walked past a bag with a cat in it. Did nothing.

* Walikng to the shop. Saw a hornet's nest. Kicked it. Natch.

* Tomorrow, the answers to the Ishirhara Test; because colour-blind people have the right to a pilot's license too.

fivewheels said...

And I have Lawrence v. Texas lined up for later.

Fen said...

do sort of enjoy the spectacle of these high-powered lawyers getting up there in the biggest moments of their careers -- the Supreme Court! -- and all that happens is they get constantly interrupted by the Justices and basically pantsed by smarter guys like Breyer and Scalia.

Too true. My father argued before SCOTUS several times. He was very proud of it, but he usually got smacked by the justices.

E.M. Davis said...

If I was going to drink beer during the day -- which I wouldn't -- I wouldn't drink canned beer. And if I drank bottled beer, I would pour it in a glass.

Beer snob. Crack open a Schaefers for pete's sake.

Trooper York said...

I thought your beer was Rheingold the dry beer?

You don't want to drink that Wisconsin swill.

Methadras said...

Release the GAYS!!!

*hat tip to trooper

ricpic said...

I couldn't believe it when I read that Pabst has become the "in" beer to hippies. Insipid tasting.

Coketown said...

Would a gay couple that opposed same-sex marriage have standing?

chickelit said...

Would the striking down of the Prop 8 as unconstitutional set a precedent for other states to throw out such initiatives?
If yes, does this effectively decide that same sex marriage must now proceed in all 50 states?

Ann Althouse said...

"I couldn't believe it when I read that Pabst has become the "in" beer to hippies. Insipid tasting."

It's not about taste. It's about movies.

mtrobertsattorney said...

What kinda beer ya drinkin kid?

Heinekens.

Heinekens?? Fuck that shit!! Pabst Blue Ribbon!!!

One of the most profound and moving scenes in film history.

sunsong said...

Why should gay people, who aren't even the problem, bear the burden?

Exactly. It's as if the anti-gay crowd is arguing that they cannot live by their own values unless their values are enforced by big government. They seem to be arguing that human nature is so vile, so wretched that people will, if not controlled by government, revert to behaving like animals.

Ted Olson was the most persuasive, imo. He knocked down the big government argument presented by Cooped and framed the issue around individual choice and basic human rights.

My guess is that the panel wil decide for Perry.

jnseward said...

It is incredible to me, regardless of how one feels about homosexuality, that anyone, let alone a court, could question the Constitutional right of the people to say that the legal definition of "marriage" should be confined to heterosexual couples.

One may wish people felt otherwise, but how on earth can anyone, especially you, Ann, think that it is unconstitutional? Leaving the definition of marriage the way it has mostly been throughout the history of Western civilization is ipso facto proof of unconstitutional bigotry?

Methadras said...

Even homosexuals can birth children and do, so why is their homosexuality deserving of special status? How about the inverse. If a married heterosexual becomes a homosexual, then what? There can never be such a thing as equality in the human condition.

sonicfrog said...

"If a married heterosexual becomes a homosexual, then what? "

They get a divorce, he goes on a crime spree, gets thrown in jail, meets the man of his dream, breaks out of prison, lather, rinse, repeat!..

And they made a movie about it too!

gadfly said...

A much larger question here: Why does sexual preference have anything to do with government? I didn't ask permission to be hetero and neither do gays seek permission to enter into same sex relationships.

We are talking about inflicting social norms, when no social norms need exist. California's ballot initiative government-by-mobocracy is not now nor will it ever work.

The ninth circus, were it not leftist, would bounce this whole proceeding for want of standing.

el polacko said...

if the kids are done with their 'jokes'...the issue here is whether or not the electorate has the right to strip a class of citizens through the initiative process of the rights already granted to them by the state..and whether our constitutional right to equal protection under the law applies only to classes of people we favor. kinda serious stuff..except it's about gay people... hee hee hee...he said 'gay'.

rhhardin said...

Nobody knows exactly what a marriage is. But if you were to set out to describe what a marriage is, one of the contrasts you might draw is that it doesn't include people of the same sex, even with all the other features you've listed the same.

The claim to know what a marriage is, and enforce that definition legally, is first of all uncurious; and second of all, self-promoting.

A related question is why something is not quite enough about not having the word itself.

It's a language redefinition question.

But the language goes where actual interests go, not where other interests want it to go.

chickelit said...

el polacko said:
..the issue here is whether or not the electorate has the right to strip a class of citizens through the initiative process of the rights already granted to them by the state..

There there now. What the State giveth, the State can taketh away.

Now be good or you'll wind up with a lump of coal.

Director Mitch said...

The "state" granted the right of gay marriage in California through the California court system.

Now the court will rule if a California court can be overturned by a California constitutional amendment, voted on by a majority of the people.

So if you stand by this reasoning, you basically say California courts cannot ever be overturned, period, even by amending the constitution.