Aug Sept 2016
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The Advocate

Prop. 8 Has Its Day in Court—Again

Prop. 8 Has Its Day in Court—Again

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.

Jeff Tabaco (L) and Thom Watson PROP 8 X390 (GETTY) | ADVOCATE.COMThe gravity of the arguments was not lost on those who gathered outside the ninth circuit building early Monday morning. The pro-marriage equality crowds were a bit larger than those at the original trial, drowning out a contingent of antigay protesters, which included a group of young college students from Sacramento-based American River College. (Strangely, the Fred Phelps family was not in attendance.) “I don’t think I’ll be able to breathe deeply until it’s over. And I expect to be riveted,” said Jennifer C. Pizer, Lambda Legal senior counsel and marriage project director, as she stood before the crush of people entering the courthouse at 8:30 a.m.

Inside the stained glass-and-marble Courtroom One, ninth circuit judges Michael Daly Hawkins, Stephen Reinhardt, and N. Randy Smith first heard arguments about the more arcane issue of constitutional standing for a coalition of antigay groups defending Prop. 8. Cooper, who frequently stumbled during a withering interrogation from U.S. district judge Vaughn R. Walker during closing arguments in the trial months ago, was far more authoritative during this court appearance, arguing that court precedent should allow Prop. 8 proponents to defend the Yes on 8 votes of nearly 7 million Californians in 2008.

Robert Tyler, the attorney for an official with Southern California’s Imperial County, where Prop. 8 passed by a wide margin, didn’t fare as well, and he was the target of the most blistering questions by the panel. Tyler is also general counsel for the Southern California-based conservative legal group Advocates for Faith & Freedom and represents the county’s deputy clerk, Isabel Vargas. During the press conference afterward, Tyler declined to elaborate on how his group became involved with Vargas.

But in court, the ninth circuit panel was duly intrigued. “Where is Dolores Provencio?” Judge Hawkins sternly asked Tyler almost immediately. (Provencio is the Imperial County clerk, i.e. Vargas’s boss.) “Is there anything to suggest that [Vargas is] acting with the clerk’s authority? ... There’s nothing in the record to assume your client has any authority to attempt to intervene in the litigation.”

Boies, arguing the standing issue on behalf of the two gay couples who sued the state in 2009 when they were denied marriage licenses, told the court that Prop. 8’s proponents do not have standing because they have failed to show how they’re personally injured by the lower court ruling. Despite state officials’ decision not to defend Prop. 8 in court, the fact “that there is no one to defend [a ballot measure] does not give standing,” Boies said.

The merits of the case were the meat of the second half of arguments. And Romer v. Evans, the 1996 U.S. Supreme Court decision striking down a Colorado state amendment that prohibited any state or local laws protecting gays and lesbians from discrimination, was one of the most referred-to cases.

“How is [Prop. 8] not Romer?” Judge Hawkins asked Cooper. “Isn’t that exactly what the [amendment] in Colorado did?”

The Supreme Court, Cooper replied, was dealing with sweeping law in that case — one that placed undue burdens on gay people, rendering them “strangers of the law.” Prop. 8, which in official ballot language stripped same-sex couples of the right to marry as decided by the California supreme court in 2008, was different, he argued.

Judge Reinhardt, a liberal and the feistiest member of the Monday panel, appeared least convinced of the “responsible procreation” argument repeated by Prop. 8 supporters. The gist? That the overarching purpose of marriage is for society to channel procreative sexual activity, as it is “threatened by possibility that unintentional and unwanted pregnancy will mean that a child is born out of wedlock,” Cooper said.

“Sounds like a good argument for prohibiting divorce,” Reinhardt replied to courtroom laughter.

Olson, who argued the merits aspect of the case before the ninth circuit, encouraged the court, upon repeated questioning from Reinhardt, for a ruling more landmark than technical: “There isn’t anything in the U.S. Supreme Court jurisprudence that suggests that you can’t [look] at the larger constitutional question.”

The audience in Courtroom One was notably absent of leaders in the movement to halt marriage equality. Maggie Gallagher, chairman of the board of the National Organization for Marriage and an effective voice for the marriage-equality-opponent-as-victim talking point (who was also reprimanded by a court security officer during closing arguments of the trial in June for putting her feet up on the wooden bench in front of her), was a no-show.

Ryan Kendall, who testified in January about his experience as an unwilling patient for “ex-gay” reparative therapy as testament to the consequences of real bigotry in America, was present. “Unfortunately, even if we win in this case, the reality is that many kids will still be shipped off to ‘straight’ camp,” he said. “It’s an ugly truth. But at least when you start normalizing people who love each other, you start to make things better. And that’s how you protect children.”

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