Oral arguments in Perry v. Schwarzenegger, the federal challenge to Proposition 8, will be held before the 9th Circuit Court of Appeals at 10:00 PST. The arguments will be split into 1 hour for the issue of standing, and 1 hour for Proposition 8 itself.
If you wish to follow the appeal live, you can follow at one of the following points. The California channel is broadcasting early, the others are not up as I write this (NOTE: at 5m 'til, the Californa Channel is still the only one broadcasting):
CSPAN: http://www.c-spanvideo.org/...
The California Channel: https://www.calchannel.com/...
ABC: http://abclocal.go.com/...
(update: The ABC link isn't showing it live, they are commenting while the trial is going on.. FAIL).
(new update: not sure it's a FAIL...they are trying to give play-by-play here, I am not watching it, so I cant' tell if it is nuanced or not. Might be better for some viewers.
For in-depth analysis of what has gone before, see the Prop 8 trial tracker. They have tons of info.
I will update this as the appeal goes on, I am poking this up now so that those who wish can follow live.
My previous updates on the trial today:
A look at the judges: http://www.dailykos.com/...
General information on today's trial (a bit out of date now): http://www.dailykos.com/...
Common wisdom is that the appeals court will split 2-1, with Smith, a Mormon, dissenting. He is the one to watch; if he sides with the majority then this case is indeed a good thing.
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UPDATE 1:
Cooper opens for Imperial County. Judge Reinhardt brought up the AZ case where he was overturned harshly by SCOTUS for granting standing where he shouldn't.
Robert Tyler for defends: starts with grand statement, get's slapped down eventually. Representing "a clerk" in Imperial County. Claming that the clerk's duties will change with Prop 8, thus they have standing. The Judges are not interested in this argument at all.
UPDATE 2:
Bois up for the plaintiffs. First up corrects errors by Tyler. Discussions of jurisdiction. Discussion of why plaintiffs chose NOT to go with class action.
Judge Smith: Governor and AG have actively nullified the initiative process in CA, since noone else has standing. Other judges hop on this argument. This circled back to the AZ case.
Smith goes farther: Is lack of defending in court a lack of enforcement?
Back to the main point, Bois says, "no personal, concrete, particularized injury, therefore the defendors have no standing".
A very telling point: Smith: you are only holding that this has to be enforced in two counties, and that the AG will CHOOSE to enforce it in the rest of CA.
Judge: "you're lucky the election turned out the way it did."
A discussion about LATER, if prop 8 is overturned (in the 2 counties) and Vargas then wanted to, she COULD then appeal, but she can't now. Judge Hawkins: shouldn't we just gather all this up now and decide it once and for all.
Bois: We shouldn't give in to convenience.
Reinehardt to Bois: "I can't believe a man with your fame....even if you lost to Mr. Olsen."
Cooper is back up for his last couple minutes.
And we are finished with this part, at 1 hour 10 minutes.
10 minute recess for 2nd hour.
UPDATE 3:
2nd part of the trial. This is the trial of the actual proposition 8.
Cooper up for the defendors.
"marriage is fundamental to the existance and surival of the human race." Is the definition one to be made by the people, or does the constitution take it out of their hands...
immediate jump: Could the People of CA reinstitute segregation.
cooper: well, no, because of the constitution.
weak sauce starting out.
Cooper starts in differentiating this from Loving v Virginia.
Rational basis should apply, and if so then traditional marriage will uphold. The KEY rational basis (the disguishing characteristcs) NATURALLY produce children. Society doesn't care about platonic relationships. When a man & women become sexual, society becomes interested because (1) society needs life to continue (2) vital intersted are THREATENED by unintentional and unwanted pregnancy means they are born out of wedlock and society is harmed. Both in society has to usually help the mom.
Reinhardt: sounds like a good argument to prohibit divorce. But why does this proscribe gay marriage, and them raising children.
Cooper: We are just showing the rational distinction between SSM and opposite sex marriage.
Smith: What is rational basis for an initiave (when CA already says gay couples have ALL rights of straight couples), what is the difference except a word. Waht is the rational basis?
Cooper: the word IS the institution. If you redefine the word, you redefine institution. This would redefine it.
Hawkins: Why aren't merits controlled by Romer? This initiative strips a right that already existed.
Cooper: Romer took away a lot of rights..
Hawkins: so if you take away a bunch of rights it's bad, just one right is on?
Cooper: Amend 2 (in Colorado) was sweeping. Marriage is long-standing as is. It's not a massive step-in like romer was.
Hawkins is quoting Kennedy in Romer. "There is no reason to distinguish people."
Cooper: repeats that Amendment 2 is more sweeping this is just upholding a traditional definition of marriage. And there are disguishing characteristics at work.
Hawkins: do you want us to sidestep Baker v. Nelson (I don't know Baker, I'll research and post later).
Cooper: no.
(NOTE: Smith has been totally quiet here. Not a single question.)
Update:
Reinhardt: If people strip a right, and it is..invidious. What is the reason to take this title away.
Cooper: The people of CA don't need a reason. They can do what they want.
(note that Cooper has gone over by 15 minutes already).
Reinhardt: Why isn't Romer the same. There is a limit on what people do...there has to be rational basis NOT related to bias.
Cooper is trying to make point that just because SOME gays are married in CA, you shouldn't take that into account. Pretend it didn't happen when ruling. It doesn't matter that you are taking something away.
Reinhardt: There seems to be a difference (and city of SF strongly stated that).
Hawkins is testing a slippery slope: could prop 8 had removed civil unions? what about hospital visitation? step..step..
Cooper: People are free to do whatever as long as they are beyond the US Constitution. The can give and take rights, as long as they stay within US Constitution.
ah.. SNAP: Reinhardt: Romer also took away rights that weren't provided by the US Constitution. Why did that work?
Cooper: Argues this point. It didn't just take away rights.
Smith (FINALLY): Some states haven't given civil union rights. Do they have a stronger argument for rational basis than does CA?
(Differentiate your argument, because CA has so many rights already given).
Cooper: No, CA has given more. It doesn't not weaken it's position by trying to address interests.
Smith: I'm trying to find rational basis in this situation. Tell me. <shrug> is it just to market the marriage? Is that is?
Cooper: goes off on "unique purposes" of male/female procreative capacities.
(ed: we need marriage because those straights get preggers accidentally and we need to have inducement to get married).
Smith:we're out of time, I'll skip my last question...it is (laughter) "do you think this would make the rational basis (heightened scrutiny) of Lawrence?"
Cooper: we think it does. While no society doesn't DEMAND a couple product children..it would require Orewellian measures if it insist marriage produce children. Very much a constitutional violation.. (yikes, did he say that?).
UPdate:
12:05 PM
Olsen: California has engraved discrimiation based on sex into it's constitution. reads the prop: "ELIMINATES the right....".
This is, as SCOTUS says, "MOST important relation in life."
R: So there is a difference in taking a right a way and never giving one?
Olsen: Yes. (quotes Romer).
R: Do you suggest that gay marriage is required by the 14th?
Olsen: Cooper says only between male and female. SCOTUS has never said that. They have only said (in context of divorce, prison, etc.) is an aspect of right to life, liberty, association, etc.
R: So you find a constitutional right to gay marriage? Do we have to reach that point?
Olsen: The took a right away given by the CA constitution. I would not call it "gay marriage", any more than SCOTUS called it "Interracial marriage". Individual right.
R: still hitting on it again..is this a US Constitutional right.. yes or no?
Olsen: YES.
R: is it dependant on that?
Olsen: This isn't a societial right, is a right of persons. CA couldn't decide it wants to reduce population and therefor outlaw marriage!
R: How far do we have to go to accept your view? Is it US Constitutional?
Olsen: Only go to Romer. Can't take a right away just because they are gay (as per Romer). This does this. (and also requires heightened scrutiny).
Olsen: Brings up Lawrence. Gay sex is protected. Marriage is a fundamental right. How can fundamental/constitutional right be taken away because they are engaged in a constitutional protected activity? It is discrimination on basis of sex and sexual orientation.
Olsen: Even with rational basis (origional argument in ballot init litrature is to "protect our children from thinking gay marriage is ok"), they have gone back on that, and now becase the existance of SSM may make children prematurely occupied with sexuality. You can't take a right away based on that. It would also mandate ending conversations with other children (laughter).
Hawkins: How do we judge if rational basis saves this prop?
Olsen: You can't just magically imagine a reason for rational basis. You must look at the actual reason, they can't be motivated by malice or fear. It must be rational. Reasons are "protect our children"..
Hawkins: Suppose we accept Cooper's argument that preganacy is a rational basis. Have they given up based on their previous arguments.
Olsen: You have to look at context. The point of "rational procreation" is red herring. This doesn't prevent straights from getting married, or divorced, or their choice of having children. Elimination of prop 8 doesn't help, or hurt, straight marriage. This is clear from witnesses at Prop 8 trial. Cooper didn't know of any harm that might accrue "we don't know".
Hawkins: This is more a "legislative fact", not a "real fact". Can it be perceived and argued that there can be a reason to uphold prop 8.
Olsen: That means you ignore the actual witnesses on the stand, the proven immutability of orientation on the stand, all calls for heightened scrutiny. But if you only go by the rational basis standard, what can you imagine that would cause harm...
SMITH interrupts: Do you believe that distringusing marriage from Domestic partnerships in order to encourage it as a vehicle for responsible procreation. Would that survive rational basis review.
Olsen: wouldn't survive the evicence presented.
Smith: ONLY if you accept the judge only,
Smith: the idea of distinguishing IN HAME ONLY, to promote it as a veihcile of procreation, is it irrational?
Olsen: YES. quoting Cooper: "the name is the institution." The word matters. Nothing suggests children thrive as well. Easy to say it's easier when a child is with their mother & father. BUT, the remedy doesn't fit the problem. It doesn't change where children are raised. Reinhardt suggested better remedy to prohibit divorce.
R: are we free to use other than rational basis?
Olsen: Yes.
Olsen: talks about crazy-quilt of marriages now.. It is now an irrational situation.
Olsen: It seems taht CA has built a fence around it's GL citizens, and around marriage. Citizens are denied access. That is violation of due process.
R: Are we free to decide anything other than a broad consititutional issue? (SCOTUS doesn't like that). Since your statement basically says that this would be nationwide.
Olsen: You can decide in a narrow way in just californa. BUT there's nothing in national SCOTUS jurisprudence that says you can't look at the US constitutional question.
There is not doubt it is discrimation, and that it is harmful. It cannot stand any scrutiny...none of my opponent's arguments are RATIONAL.
Now Stewart: from city of SF for plaintiffs. She is very well spoken and passionate. Very good:
CA promotes child-rearing separately from marriage. Child-rearing is same for same/oppposite sex couples. Prop 8 didn't change that.
Hawkins: are we jsut talking about a lable?
Stewart: yes just a label, but a very important label. people spent a LOT of $$ on this lable.
Measure is irrational, because CA Family law acknowledges that gays raise children, that gays can raise children. It doesn't matter how child comes into world, state is intersted in child.
Smith: If marriage is a vehicle for procreation, doesn't it survive rational basis?
Stewart: No. Gay people DO procreate. Exclusion of gays would not make straights procreate different or raise children differently. Only way it works is if there is something "wrong" with gays. And you can't do that.
What it does is treat gay relationships the same but call them different.
Prop 8 can only be deteremined by animus. But that doesn't matter. Purpose of campaing was bias. It demeaned gay people to inferior status. Prop 8 protrayed SS couples as a lifestyle, different.
In close: you can either find all prop 8 voters as bigots, OR (quoting Kennedy) voters were simply not carefully thoughtful.
COOPER BACK for 2 minutes:
Again tries to distinguish this from Loving (again, Baker v. Nelson).
Olsen was wrong with his characterization of Baker.
The reason Baker didn't success is because gay marriages don't produce children. THAT is your distinguishing characterstic of straight marriage.
R: Do you have a case to suggest that, or is that your argument?
Cooper: Quotes Garret and Cleiborn cases. Based on distinguishing characteristics of gay v. straight marriages (maybe?).
Cooper: If I could very quickly..
R: Nothing in this court has gone very quickly...
SMITH: when you're in the red, that doesn't mean you have that much time remaining....(ha ha).
Cooper: again drawing difference between Romer and Prop 8.
Court adjourned. This concludes my updates. The prop 8 trial tracker is again an amazing place to read this.