Prop. 8 Has Its Day in Court—How Will the Court Rule?

The oral arguments before the Ninth Circuit Court of Appeals took place yesterday and some observers believe that the three judge panel asked questions that indicate the judges are skeptical of the standing of the Prop. 8 supporters to appeal the lower court ruling. In past posts, we've looked at this issue of standing and, based on past U. S. Supreme Court rulings, the easiest way for the Ninth Circuit to deal with the case would be to rule that the appellants have no standing to appeal. Thus, the larger issue of the constitutionality of bans on same sex marriage could be side stepped. That decision could, of course, be appealed to the U.S. Supreme Court. But again, by ruling that the appellants lacked standing to appeal - perhaps an attractive option for the Justices - the larger issue could be sidestepped until another day and a different lawsuit. Gay marriage would be legal in California, but the ruling would be limited to that state. Here are highlights from the Advocate on the oral arguments:
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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.
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[I]t 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.”
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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.
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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.