Much attention will be focused on the drama unfolding in a federal courtroom in San Francisco Monday as the three judge panel of the 9th Circuit Court of Appeals hears arguments about whether or not it should uphold the ruling of U.S. District Judge Vaughn Walker, who found Proposition 8 to be unconstitutional.
However, since Governor Arnold Schwarzenegger, outgoing Attorney General Jerry Brown (who is also the incoming governor) and incoming AG Kamala Harris, have declined to appeal Walker’s ruling, the 9th Circuit could simply rule—not on the merits of the Walker ruling, in other words, the constitutional issue—but rather on whether the Prop 8 supporters have the legal standing to appeal the matter at all.
Howard Mintz of the San Jose Mercury News has an excellent good rundown regarding what legal questions are at issue here.
Here’s a clip:
There is a strong possibility the 9th Circuit will not even deal with the issue of whether same-sex couples have a right to marry because of the unusual legal posture of the case. The appeal may be short-circuited, and marriage rights upheld, over the issue of “standing.”
Both Gov. Arnold Schwarzenegger and Gov.-elect Jerry Brown refused to appeal Walker’s ruling. As a result, there is no state official now defending the law; and newly elected Attorney General Kamala Harris will not defend it either.
The law is murky on whether sponsors of a ballot initiative have a right to defend a state law on their own. In fact, the leading precedent on the subject, in a case involving an Arizona “English only” law from the mid-1990s, suggests they may not. In that case, the Supreme Court found the sponsors did not have the “legal standing” to press an appeal.
Proposition 8 backers insist they do have a right to defend the law if the state will not, noting they were permitted to mount the defense at trial. And Imperial County has asked the 9th Circuit for the right to defend Proposition 8 on appeal, arguing it is a government institution with a stake because counties issue marriage licenses.
The 9th Circuit is clearly taking the issue seriously. The court has divided the argument session equally between the constitutional and standing questions.
Meanwhile, the LA Times’ Maura Dolan outlines why all eyes will be on the moderate judge of the three randomly chosen for the panel. Here’s a clip:
The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.
“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.
Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said
NOTE: Live coverage begins on C-Span at 10 a.m., Pacific Time.
Photo from Christian Science Monitor