Originally published on Advocate.com December 06 2010 3:35 PM ET
A three-judge panel of the ninth circuit court of appeals appeared skeptical of Prop. 8 supporters' standing to appeal a federal judge's decision striking down the antigay ballot measure and all but rejected a Southern California county official's attempt to intervene in the high-profile case.
During the first hour of arguments on often-arcane constitutional standing issues, ninth circuit judges Michael Daly Hawkins, Stephen R. Reinhardt, and N. Randy Smith questioned whether outside parties in a ballot initiative have standing to appeal a federal case.
Judge N. Randy Smith further asked whether Prop. 8 supporters, represented by attorney Charles Cooper, had asked the court to order an appeal by the state, which declined to defend Prop. 8 in court. Cooper said his legal team did not do so. A separate conservative organization attempted to do so but was rejected by a state court of appeals.
Following Cooper, Judge Hawkins sharply questioned attorney Robert Tyler of the conservative legal group Advocates for Faith & Freedom. Tyler represented Isabel Vargas, a deputy clerk of Imperial County, who has attempted to intervene in the suit. Prop. 8 passed by a wide margin in the county.
"Is there anything to suggest that [Vargas] is acting with the clerk's authority?" Hawkins asked Tyler. "There's nothing in the record to assume your client has any authority to attempt to intervene in the litigation."
Arguing on behalf of two gay couples in the suit, attorney David Boies said, "The fact that there is no one to defend [a ballot measure] does not give standing." Prop. 8 proponents have not shown they had faced personal injury in the case, he said.
Oral arguments on the merits of the case will make up the second half of arguments.