Prop. 8 Has Its Day in Court—Again
December 06 2010 7:50 PM ET
Charles J. Cooper, lead attorney for the stakeholders who funded, organized, and eventually celebrated the passage of California’s Proposition 8, tried to strike a tone of civility — if not a little victimhood for his clients — directly following the historic oral arguments Monday in Perry v. Scharzenegger before the U.S. court of appeals for the ninth circuit.
“I want to pay our respects to our opponents in this case, who have presented their case with skill and sincerity,” said Cooper, a Ronald Reagan appointee for assistant attorney general for the office of legal counsel, in a post-argument press conference in San Francisco. But then he added, “I regret in all candor that our opponents do not return that respect, to the arguments and the positions that those of us defending the constitutionality of Proposition 8 have advanced, but rather have seen fit to demean and ridicule those arguments.”
As this case goes, the jab seemed to be out of character for Cooper, who largely avoided press conferences during the trial in January and hasn’t kept pace with opposing lead attorneys Ted Olson and David Boies when it comes to cable news appearances. But it highlighted a growing chorus, however disingenuous, among those who oppose marriage equality: that decent citizens who can’t accept the notion of same-sex couples marrying are increasingly harassed and portrayed as bigots by an aggressive community seeking to overturn centuries of tradition. “We believe that people of good will can disagree in good faith on this question,” Cooper said. “Our opponents don’t agree. They believe that every one on the other side of them and this debate is behaving irrationally.”
A three-judge panel of the ninth circuit didn’t indicate how it would rule in the multifaceted case. They did pose tough and incisive questions — about the legal standing of those who defended Prop. 8 to appeal, about how broad the appellate court may rule on the matter, about just how similar the ballot measure is to an antigay state amendment struck down by the U.S. Supreme Court more than 14 years ago, and, perhaps most comically, about the legitimacy of an attempt by one county official — backed by attorneys from a conservative legal group — to step into the case when outgoing governor Arnold Schwarzenegger and incoming governor Jerry Brown have stayed far away.
The court could rule that Prop. 8 supporters simply don’t have standing to appeal in the case. It could rule that supporters do have standing but that the specific facts of the California ballot measure, which has created a “crazy quilt” of those who can marry and those who cannot, according to Olson and Boies, make it unconstitutional. The panel could even overturn U.S. district court judge Vaughn Walker's earlier decision that Prop. 8 is unconstitutional. Or, as Olson and Boies most likely hope, the court could rule more broadly and declare that marriage is a fundamental right, nationwide.