Proposition 8 is back in court this week, as Perry v. Schwarzenegger appeared before the Ninth Circuit Court of Appeals in a trial that will, no matter what the verdict, almost certainly land at the U.S. Supreme Court. The appeals court is deciding whether to uphold a prior district court's ruling that Prop. 8 violates the U.S. Constitution. And though the argument before the court was lively, the outcome is tricky to predict.
The challenge to Proposition 8 has been brought on behalf of two gay couples who argue that they have been disenfranchised by the voter-approved ban on same-sex marriage in California. Ordinarily, the other side of such a challenge would be argued by the state, which acts to defend its own laws. But in this case, Governor Schwarzenegger and Attorney General (soon to be the new governor) Jerry Brown declined to defend Prop. 8 in court. That has forced the appeals court to lead with a basic question: do the defendants, a pro-8 activist group, even have the right to bring the case?
The three-judge panel dug into that issue hard in Monday's testimony, on the one hand seriously seeming to doubt the standing of the actual defendants in the case (particularly a zealous deputy clerk from Imperial County whose connection to the case seemed to appear almost comically tendentious to all the justices), even as they were suspicious of the governor and attorney general's right to abandon laws that voters have approved. Said Justice N. Randy Smith, "We have an attorney general and a governor with no ability to nullify the acts of the people, and then by just not appealing, they do it."
Beyond the procedural question, the court heard wide-ranging arguments today on the status of marriage as a basic right, the state's interest in limiting marriage and, more than anything, the judicial precedents for any such limits. Playing a particularly prominent role was a comprehensive Colorado anti-gay amendment struck down by the U.S. Supreme Court in 1996 on the grounds that it violated the equal protection clause of the constitution. Said Justice Michael Hawkins to pro-8 lawyer Charles Cooper, "If you take away a bunch of rights that's bad, but if you take away just one, that's ok?"
Where the court goes next is anyone's guess—they may overturn the lower court decision; uphold it and declare California's mixed-up situation necessitates legal gay marriages; declare the lower court judge did not have jurisdiction for his ruling; hold that the lower court ruled too broadly; rule the defendants don't have legal standing (thus dismissing the case and letting the lower court ruling stand, which would legalize gay marriage); send the case back to the California Supreme Court for consideration of material questions (almost certainly causing a delay of a couple of years). It's a dizzying list, to be sure, and to judge from this week's wide-ranging argument, almost impossible to predict which will be the outcome. Time to settle in and wait.