Analysis of Ninth Circuit Oral Argument in Perry v. Schwarzenegger (Federal Prop 8 Challenge)

By Shannon Minter, Esq.
National Center for Lesbian Rights Legal Director

Today was the long-awaited oral argument at the Ninth Circuit Court of Appeals in Perry v. Schwarzenegger, the federal court challenge to Proposition 8. The Ninth Circuit is the federal appeals court that covers California. Today’s argument was heard by a panel of three judges, who will decide whether to uphold District Court Judge Vaughn Walker’s August ruling that Prop 8 is unconstitutional.

The argument ran for almost two and a half hours, covering two basic questions:

  • Do the proponents of Prop 8—and Imperial County, which is seeking to intervene in the case—have the right to appeal Judge Walker’s ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have “standing” to appeal.
  •  Is Prop 8 unconstitutional?

It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today’s argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue.  In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing. 

Some of the panel’s questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry. 

In the second hour, on the constitutionality of Prop 8, the panel’s questions focused on two general areas: the unique circumstances under which Prop 8 was passed in California — where same-sex couples had the right to marry before Prop 8 stripped that right away; and the principle established by the U.S. Supreme Court in their 1996 decision, Romer v. Evans, that a state cannot deliberately discriminate against gay people just to send a message that they are inferior.  

At least two judges seemed critical of the argument that Prop 8 can be justified based on arguments relating to procreation—which was the central defense offered by the proponents’ attorney Charles Cooper.  Repeatedly, the judges pressed Cooper on how procreation could possibly justify Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples, and has affirmatively embraced same-sex couples as equally good parents.  

Arguing on behalf of the plaintiffs, former U.S. Solicitor General Ted Olson urged the court to reach the broad question of whether same-sex couples have a fundamental right to marry under the U.S. Constitution.  In an argument that complemented Olson’s, Therese Stewart, Chief Deputy City Attorney  for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is “okay.”

Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is “animus,” or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on “animus” does not have to mean that the voters intentionally sought to harm gay people.  Rather, unconstitutional “animus” can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

Together, Boies, Olson and Stewart were a great team and did a phenomenal job of presenting the most powerful arguments for upholding Judge Walker’s decision. There is no specific timeline for the Ninth Circuit panel to issue a ruling, but they have expedited the case up to this point, and we may see a decision within a few months.  In the meantime, unfortunately, same-sex couples in California will have to continue to live under the state’s separate-but-equal system that designates our families as second-class.

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