Gay marriage: all eyes on 9th Circuit panel
A moderate judge is considered pivotal in the appeal of a judge's ruling
against the state's ban.
By Maura Dolan, Los Angeles Times
December 6, 2010
When a federal appeals court meets in San Francisco on Monday for arguments
on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins,
a moderate Democratic appointee whose vote is expected to be critical in the
same-sex marriage case.
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.
The panel is hearing an appeal of an August ruling
by San Francisco's Chief U.S. District Court Judge Vaughn R. Walker, who ruled
after a trial that the 2008 ballot measure violated the U.S.
Constitution.
The appeals court is considering two questions: whether
opponents of same-sex marriage have legal authority to appeal Walker's ruling
and whether the 2008 ballot measure that reinstated the marriage ban in
California violates federal constitutional rights to due process and equal
protection.
Besides looking for clues to Hawkins' leanings, legal
analysts said they would pay close attention to any comments from the judges on
Walker's factual findings. Walker ruled that the trial evidence showed that
homosexuality was not easily changed and that children of same-sex couples fare
just as well as those in opposite-sex households.
Monday's extraordinary
two-hour session will begin at 10 a.m. and is scheduled to be broadcast live on
CSPAN. Latimes.com also will blog about the hearing live and post expert opinion
from three law professors as they watch it.
Some of the nation's top
lawyers will be making the arguments. Representing the challengers to
Proposition 8, David Boies will argue that opponents of gay marriage lack
authority to appeal, and Theodore Olson will handle the constitutional issues.
Charles Cooper, a Washington-based lawyer, will represent ProtectMarriage.com, the sponsors of
Proposition 8. All three have strong track records.
The 9th Circuit
reserved the first hour for arguments on whether ProtectMarriage and Imperial
County, where voters overwhelmingly supported Proposition 8, have authority or
"standing" to challenge Walker's ruling.
Federal courts have strict legal
rules about who is allowed to pursue an appeal. The defendants in the
Proposition 8 challenge were Gov. Arnold Schwarzenegger and Atty. Gen. Jerry
Brown, but they declined to defend the law. As the losing parties, they had
authority to appeal Walker's ruling. But both Brown and Schwarzenegger hailed
his decision and refused to appeal.
The two gay couples challenging
Proposition 8 contend that ProtectMarriage lacks standing because the group is
not directly affected by Walker's ruling. They also argue that Imperial County
can't appeal because marriage is a statewide issue, and the state, not counties,
enforces marriage laws.
ProtectMarriage has countered that it represents
voters who supported Proposition 8 and had standing to defend it during a state
challenge before the California Supreme Court. Imperial County has argued that
it can appeal Walker's ruling because it issues marriage
licenses.
Although conservative jurists tend to be more restrictive about
standing, that ideological tendency may not hold in this case, analysts
said.
"I wouldn't be surprised at all if two of these judges decide there
is no standing," said UC Davis law professor Vikram Amar. Even the liberal
Reinhardt might agree that the supporters of Proposition 8 have no legal
authority to appeal, Amar said.
Reinhardt, considered strongly supportive
of gay rights, "may not want the case to go to the Supreme Court right now" on
the constitutional questions, Amar said.
Many gay rights groups,
including the ACLU, initially opposed the federal challenge of Proposition 8
because of fear that a majority of the high court might rule against gay
marriage. A narrow ruling on standing could be appealed to the Supreme Court but
the outcome would have limited effect on gay rights.
If the court rules
that the supporters of Proposition 8 did not have authority to appeal, Walker's
ruling would stand and same-sex marriage would be permitted in California, the
lawyers for the challengers have said. ProtectMarriage has countered that
Walker's ruling in that case should apply only to the two couples who filed
suit.
On the constitutional questions, Olson will argue that Proposition
8 violated due process guarantees because it stripped away a fundamental right
of all citizens and infringed on equal protection because it singled out one
class of people.
Cooper is expected to argue that the ban on gay marriage
simply reflected an age-old view that marriage was intended for the bearing of
children by opposite-sex couples and that voters have the right to define
marriage as it has been viewed through centuries.
A ruling could come at
any time. Legal experts anticipate that a decision is at least a month away and
possibly many months. The ruling could then be appealed to a larger panel of the
9th Circuit and up to the U.S. Supreme Court.
maura.dolan@latimes.com
Copyright © 2010, Los Angeles Times