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Ninth Circuit Conducts Oral Argument on Proposition 8, Marriage for Same-Sex Couples, by Diana Richmond

   By Diana Richmond, Partner, Sideman & Bancroft LLP

This Emerging Issues Analysis examines the December 6, 2010 oral argument, heard by a three-judge panel of the Ninth Circuit Court of Appeals, on whether Proposition 8, limiting the right to marry to opposite-sex couples, violates the U.S. Constitution. It addresses standing issues and the merits of the case.

The author writes: The panel was comprised of Steven Reinhardt, a 1980 Carter appointee viewed as a judicial liberal; Michael Hawkins, a 1994 Clinton appointee, viewed as either moderate or liberal; and Norman Smith, a 2007 Bush appointee viewed as conservative. Charles Cooper argued on behalf of the Prop 8 proponents; Robert Tyler for Imperial County; David Boies for the plaintiffs seeking the right to marry, on the issue of standing; Theodore Olson for the plaintiffs on the issue of the merits; and Therese Stewart for the City and County of San Francisco, on the merits.

The Ninth Circuit granted an exceptional two hours for oral argument, signaling the importance it grants the case. The first full hour was allotted to the issue of whether the Proponents of Proposition 8 and Imperial County had legal standing to take the appeal (argument actually consumed close to ninety minutes). The usual defenders of a state initiative, the governor and attorney general, had both declined to defend Proposition 8, at the trial court level as well as before the Ninth Circuit.

"Isn't their failure to appeal the equivalent of nullifying Prop 8?" Judge Smith challenged David Boies, arguing for Plaintiffs on the standing issue. Judge Reinhardt picked up the thread, explaining that while a governor has no authority to veto a proposition, he can in effect do so by not appealing a ruling that overturns the proposition, thus preventing anyone from appealing it further.

Judge Reinhardt appeared the most cautious of the three on denying standing to the Proponents. He asked whether the court should certify the question of standing under these circumstances to the California Supreme Court. Boies argued that nothing the California Supreme Court could say could influence Article III standing in federal court. Reinhardt questioned counsel closely about who was served with and who was bound by the injunction issued by the U.S. District Court against enforcing Prop 8. Boies' replies regarding the limitations of the injunction and his intentionally not having served it on Imperial County did not appear to satisfy the court. subscribers can access the complete commentary, Richmond on Ninth Circuit Hears Oral Argument on Marriage for Same-Sex Couples. Additional fees may be incurred. (approx. 4 pages)

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Diana Richmond, a California certified family law specialist, is a partner at Sideman & Bancroft LLP in San Francisco. She is a co-editor of Kirkland, Lurvey, Richmond & Wagner, California Family Law Practice & Procedure (Lexis-Nexis) and a contributing editor to California Family Law Monthly (Lexis-Nexis). She has authored or co-authored amicus briefs in support of the right to marry for same-sex couples in Maryland, California (The Marriage Cases), and Iowa, and in Perry v. Schwarzenegger at both the District Court and Ninth Circuit levels.