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Well, that was certainly interesting.

The California Ninth Circuit Court agreed to allow the hearings on Prop. 8 be televised on CSPAN.  As this is a court proceeding, it's a matter of public record, so you can search for it on the torrents without worry (it might be on YouTube as well, but don't hold me to that).  So anyone who wanted to see Ted Olson or David Boies argue got their chance.  If those names sound familiar, they were on opposite sides of the 2000 recount hearings -- Olson was the head of Shrub's team, Boies led Gore's.  Someone's paying a LOT of money for these two to argue.  While this does constitute a legal Dream Team, I think Boies, after so many setbacks with Constitutional cases (the M$ breakup, Florida recounts, Shawn Fanning, the plot to destroy Linux), just wanted to see what it felt like to be on the winning side for a change.

Perry vs. Schwarzenegger is what it's called on the docket.  There was a three judge panel -- Judge Stephen Reinhardt, Senior Judge Michael Daly Hawkins, and Judge N. Randy Smith.  They allowed two hours to hear the arguments.  From what I can gather, this is unusually long.  Then again, they needed the extra time.  Almost the entire first hour was spent weighing if those seeking to uphold Prop. 8 had standing.

To clarify -- there is a sort of war going on between the federal courts and the Supreme Court.  The Supreme Court is constantly overturning decisions because the feds will interpret certain laws to allow certain things.  The Supes had already dealt with software patents once before when Bilski happened.  The Supes then established new rules, basically telling the feds and the patent office, "Quit extending the scope of your powers, goddammit."  And it still doesn't stop anything, as Oracle vs. Google is showing.  The Supes are currently considering the i4i vs. M$ suit, but not on the subject of patentability, but what constitutes invalidity of a patent.  Close, but not quite the same.

The panel was accutely aware that the Supes will be watching their ruling.  Article III of the Constitution addresses the judicial power to hear cases and controversies.  The Supes have established that, for the court to hold a hearing, every party has to show they are or will be affected by the court's decision.  It's called "sufficient injury".  And it has to be a legitimate affect -- saying you disagree ain't good enough.

So what makes this a problem?  Here's the problem -- Prop. 8 is being defended by an activist group.  A bunch of people with an opinion.  That's it.  Both Gov. Schwarzenegger and AG Jerry Brown have declined to defend the bill, they are content to let Prop. 8 die.  Without their official fiat, it leaves a gaping hole in standing that not just anyone can fill.  In many ways, this is an important legal precedent -- if top state officials refuse to defend a voter-passed initiative, can those who funded and worked for the passage take over?

Now, there might be some wiggle room, but this wiggle room is exactly what is reminding the panel who is ultimately in charge here.  Hawkins and Reinhart both sat on a panel in 1997 about an initiative for Arizona to make English their "official" language.  The measure had been struck and Arizona didn't bother to defend it.  The sponsors of the bill stepped up, and the lower court ruled they had standing because the state had washed its hands.  However, the Supes that year issued a unanimous ruling that they were wrong.  In a ruling written by Ruth Bader Ginsburg, she expressed "grave doubts" that such standings existed and vacated the ruling.  (Vacating is different from ruling against.  Vacating means you get to do over -- find better facts to back up your argument, and we'll listen.  If this is the best you can do, go fuck yourself.  The sponsors apparently opted for Option B.)

Based on the questions asked, it seems that standing may be what sinks this thing.  Hawkins recounted the Arizona initiative story and ruling DURING THE TRIAL.  In other words, he was making sure everyone knew how the winds were blowing, and that they had no problem with it -- Hawkins described the panel he and Reinhardt were on as being on the "wrong side."  Judge Smith, a recent appointee by Shrub, agreed with this.  He also asked if Schwarzenegger and Brown could destroy Prop. 8 and the will of the voters who approved the measure by simply not appealing.  After all, the whole point of initiatives is to enable people to make laws when their elected officials can't or won't.  Like a recall vote, do the risks of abuse outweigh the intent of empowerment?  It might not even be debatable -- Reinhardt was open to certifying the question to the California Supreme Court.  That means asking the state Supes to determine if the supporters have standing.  Yeah, it smells like a dodge, but it does hold up.  If a federal case has unresolved issues of state law that can affect the outcome, federal courts can certify questions to state courts.  Basically, its allowing a decision that could be grounds for appeal to be decided before the boat leaves the harbor.  The state Supremem Court tells the fed court how the ruling on the state law question goes, and things proceed from there.

The standing thing aggrevates me because it is making things happen with a technicality instead of saying, "This is right or wrong, deal with it."  There will still be that ambiguity of the will of the people or the law was fine it just got snookered or whatever.

I'm actually hoping that the group is found to have standing.  Based on the questions the panel was asking, Prop. 8 is deader than Charlie Sheen's dignity.  Chuck Cooper represents the sponsors of Prop. 8.  He's clearly skilled, but also trying to spin straw into gold here.  None of his arguments survived scrutiny.  For example, he trotted out the ever-popular "won't somebody think of the children?" argument (notice how it's always those without any connection who get the most offended and fight the hardest?  Look at Don't Ask Don't Tell -- 2/3 of enlisted men say they don't have a problem with gays serving openly, but supporters of DADT want to protect our troops from the detrimental affect of gays.  The ones who, for lack of a better phrase, have standing say it would be okay, and those without are not only dismissing them as not knowing the horrors they will face, but asserting they know better.  Idiots).  He argued the state should encourage heterosexual marriage so that children will be born into two-parent homes.  Reinhardt pointed out this argument is more effective to ban divorce than gay marriage.

Smith asked what difference does any of this make to Prop. 8 supporters.  California gay and lesbian couples already have the same state law rights as "married" couples, they just don't have the title of "married."  They have everything else, and excluding them from the title of "marriage" for no good reason is irrational and exclusionary.

Cooper then reached for the will of the voters.  No matter if a law is pointless, exclusionary, whatever, the majority voted for it, so it should stand.  The justices promptly reduced that to roadkill.  Jefferson's warning of the tyrany of the majority.  Jim Crow laws.  Holy fuck, did Cooper REALLY think that argument would fly?!?  The Constitution establishes that man is endowed with certain inalienable rights.  In other words, certain rights are NOT at the discrestion of the majority, period, finito, THE END.  Hawkins pointed out (and Cooper conceded) that the people of California would not be able to reinstate school segregation.

If you want to see some great lawyering, check out Ted Olson.  The judges hardly interupted him while he spoke.  Damn, that guy is good.  His stance was simple -- the 14th Amendment guarantees "equal protection of the laws" and "due process" for all persons.  It makes no restrictions.  In fact, the drafters of the amendment considered narrowing the protections to simply racial discrimination.  They ultimately rejected it and went with a broader guarantee of equal rights for all under the law.  This includes whether a person is man or woman, white or black, gay or straight.  This, in fact, formed the basis for the right to interracial marriage (remember when THAT was shocking and going to be the Fall Of The Republic?).  Cooper would only concede interracial marrige, he wouldn't go any further.

Reinhardt kept coming back to one question for Olson -- could the court take away the right to title of marriage from same-sex couples?  When Prop. 8 passed, all the gay marriages that had been legal were suddenly null and void.  Was that constitutional?  Olson gave them an out -- the Supes' ruling in 1996 for Romer vs. Evans.  Colorado amended its constitution to prohibit any level of government from enacting anti-discrimination measures that protected gays, lesbians, and bisexuals.  The Supes likened it to Lucy pulling away the football -- gays thought they had protection, and were suddenly told they couldn't have it, yanking the football away.  That was determined to be Not Nice (a.k.a. discriminatory) and the Supes shot the amendment down in flames.  Olson suggested Reinhardt could apply the Supes' view in that regard to Prop. 8 if the prospect of supporting the 14th Amendment made them nervous.  I told you the guy was good.

So what next?  Well, arguments have been made, now we wait to see with the Ninth Circuit does.  If they certify the question, we'll hear about that within weeks or even days.  If they just decide to rule as is, we will be waiting between a few months to a year for a ruling.  And then the losing side will ask a broader panel of 11 judges to review the decision (they don't HAVE to, but you know it's coming).  It's called an en banc proceeding.  And whatever gets decided there, the losing side will appeal to the US Supreme Court.

Not over yet, but we're getting there.  Slow and steady wins the race....

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