Prop8 appeal hearing, followup (updated)

I did not see the hearing, being in meetings all day. For some good commentary of what transpired and what it might mean:

• The LA Times thinks it went well.

  The judges explored at least two routes that could achieve that goal. One would be a ruling that California, having granted marriage rights to same-sex couples, could not take them away by popular vote. The other would avoid a decision on the constitutional issues by declaring that gay-marriage opponents lacked the legal standing to appeal a lower court striking down Proposition 8, the 2008 ballot measure that amended the state Constitution.

• San Jose Mercury News has a detailed article.

  [Judge] Smith, an appointee of former President George W. Bush, also repeatedly challenged [Prop8 defense attorney] Cooper. Smith was particularly troubled by the fact that California has broad protections for same-sex couples under its domestic partnership laws, yet forbids them to marry.
  
  "What is the rational basis then if homosexuals have all the rights heterosexual couples have?" Smith asked. "We're left with a word: marriage."

  
  
• Standing, Romer, and the Word from Prop8 trialtracker, again focusing on the idea that uniquely, California gays have all the rights but the word--and they used to ahve the word.
• SLugfest on gay marriage and standing in 9th Circuit, from lawyer Nan Hunter. Read this for a detailed discussion of the standing issue. She concludes,

  On the merits, the most important exchanges related to whether the court could determine the constitutionality of only Prop 8, that is, without reaching the question of whether bars to same-sex marriage in other states would be unconstitutional. Asked that direct question of whether the court could avoid ruling as to other states, Ted Olson said yes, although he added that the decision he wanted would be on broader grounds. If I had to bet on the merits, my money would be on a decision affirming the district court that applies only to California, and based on reasoning so limited to California that it would not be binding on any other state, even the other states within the Ninth Circuit. In my opinion, that would be the best possible outcome in this case, since it would make it possible that the Supreme Court would decline to review it at all.

• Also an excellent overview from Elizabeth Wydra at the HuffPo.
• Scotusblog: Deciding what to decide:

  Judge Reinhardt conceded that voters could amend their own constitution, but, he said, the key question is “what are you amending?” If the measure is taking away a right that previously existed, the judge suggested, that would not be open to voters to do. The problem, the judge said, would arise if a state were “taking away a right for a particular class with a reasonable reason.” And, he suggested, picking up on Judge Smith’s point, what was reasonable about giving gays and lesbians all the privileges of marriage, as California does, while taking away the title of marriage (which homosexuals had gained in a California Supreme Court ruling overturned by Proposition 8).
  
  Several times, Judge Smith made it clear that he was worried, as he put it, about the rational basis for going as far as California had gone. While the judge speculated about some reasons that California voters might have, he seemed uncertain that those were strong enough. The judge even wondered whether a state that had not given any rights to same-sex couples might have a stronger argument for denying marriage rights than Californians had.\

• Shannon Minter's reaction from Pam House Blend

  Therese Stewart, Chief Deputy City Attorney for San Francisco, did a brilliant job of laying out why Prop 8 is uniquely irrational because it took away an existing right, because California continues to give same-sex couples all of the substantive rights and benefits of marriage, and because the stated purpose of Prop 8 in the ballot materials was to counter the idea that being gay is "okay."
  
  Stewart also made a crucial point about what it means for a court to determine that the only justification for a law is "animus," or bias, against a group of people, which would be unconstitutional. Contrary to how the proponents have framed this question in the media and in court, Stewart rightly argued that from a constitutional perspective, finding that a law was based on "animus" does not have to mean that the voters intentionally sought to harm gay people. Rather, unconstitutional "animus" can include situations where the voters failed to think about what is really at stake for the targeted group, or failed to guard against a natural tendency toward stereotyping of unfamiliar or historically disfavored groups.

• Feisty questions on standing and merits from Keen News Service.
• And let's not forget what they really think, since part of the decision sits on whether or not Prop8 was motivated by animus. There was a rally outside the courthouse. Syd Peterson reports

  As I made my way up the courthouse steps, a Christian with a bullhorn and a huge yellow sign that read, “HOMO SEX IS SIN,” yelled from across the street: “You are an abomination!” He continued, “You don’t know anything about marriage! You don’t know anything about love! You know about lust!”