Yesterday was the presentation of the case to the 9th circuit.  Now, it’s not the full 9th circuit, which means that whatever these three judges decide, they may well have to reconvene with the rest of the 9th circuit if whoever loses this round decides to appeal.  It’s sort of a weird situation but it appears that, whatever they rule, the loser can then appeal either to the full 9th or to the Supreme Court.  If they appeal to the full 9th, they will probably then appeal to the Supreme Court anyway.  It all feels a bit futile when you know that it’s going to get appealed all the way up.

The three judges on the panel are, from most liberal to most conservative, Stephen Reinhardt, Michael Hawkins and Randy Smith.  Both Reinhardt and Hawkins seemed to agree with Judge Walker’s logic, while Smith seemed to be a bit more on the fence.  Even he, a fairly conservative republican, had a hard time with the idea that California had given a right and then taken it away — this led to one of the better lines of the day, in which a judge asked if it would be OK for California voters to reinstitute segregation.  Smith did, however, think that promoting procreation and a biological mom and dad family environment was a reasonable rational basis for excluding homosexuals from the instituion.

His biggest problem with the prosecutorial case came with the question of standing.  For those not following, the official defendants named in the case refused to defend the law, so several other people joined the lawsuit as Defendant Intervenors.  The DI aren’t people who would normally even be allowed to participate, but because no one was defending Prop 8 in California, they were allowed to join the case.  The question now is whether they are qualified to be DIs in a federal court.

The answer basically appears to be no, especially since SCOTUS has been tightening restrictions on who can be a DI in federal court over the last couple of decades.  The problem Judge Smith has, and I actually agree with him here, is that California has a process that says that the Governor cannot veto something voted on by the people and that, by refusing to defend Prop 8, he’s nullifying what the people want.

So, I don’t think that any of the DI actually deserve standing, but in the absence of an official Defendant, I feel like to respect the legislative process in California, it might be necessary for the 9th court to recognize the DIs in this case.

I posted a flow chart yesterday that explains exactly how convoluted all of this is, but if the 9th Court determines that the DI don’t have standing, and SCOTUS agrees, then Walker’s ruling stands and gay marriage is legal in CA.  If it’s determined that the DI do have standing, then it’s a much longer road to a final opinion, but there’s a chance that that opinion will legalize gay marriage nationwide.

By a longer road, I mean a wait for the 3 judges to rule on the constitutionality of Prop 8, then an optional wait for the full 9th court to rule on it, then a wait on SCOTUS to see if 4 judges want to have a hearing, and then finally a wait for SCOTUS to make a final ruling.

Now, in terms of argument, it has never been clearer that the DI simply don’t have one that goes beyond “gay people can have children, but they can’t do it accidentally and, even though there are no fertility requirements on straight people, we think that calling an institution marriage promotes responsible child-rearing, and we don’t think encouraging gays to responsibly procreate is something that marriage should do because they do it anyway.”  And, revealingly, the judges asked how wide a ruling that agreed with Walker would have to be — in other words, if they agree that Prop 8 isn’t constitutional, do they then have to say that gay marriage is a right in their jurisdiction?  Olson wiggled a bit, saying that that’s what he’s asking for without trying to bind their hands.

Being able to watch this all on live video just underlined how bad the lawyers on the DI side are and how good Boies and Olson are.  I know that sounds like a biased opinion, but even ignoring the strength of argument, the DI lawyers stuttered, stammered, and weaseled their way through their arguments, only to be repeatedly called on it by the judges who threw out such gems as:

“Is there anything  in the record to indicatate that she has any authority whatsoever?”

“You’re repeating yourself now.”

“If you don’t know the answer, say you don’t know.”

It was painful, but since it was televised, I really hope that some people who weren’t as familiar with the trial got the chance to see just how illogical the DI position is and how eloquent, intelligent and prepared the prosecution is.  If you get the opportunity, I urge you to watch it, I will probably watch it again myself.  http://www.youtube.com/watch?v=TA_vFjjd3yM

The DI also continue to shoot themselves in the foot by saying things like “the word is the institution,” which just underlines that even if gays had access to everything but the word, they wouldn’t have access to the institution itself.  I’ll let Therese Stewart end this, because she is amazing(paraphrase from here):

If the word is the institution, then the argument is just that gays and lesbians would “stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren’t as good, or as worthy as other couples, then isn’t the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren’t as good as me. And frankly, nanny-boo-boo isn’t a valid use of state authority.