News analysis: Same-sex marriage hearing probes meaning of an institution

the Legend staff

A team of Legend writers listened to the final arguments in the case of Perry v. Schwarzenegger before the 9th U.S. Circuit Court of Appeals on Dec. 6 in San Francisco and prepared the news analysis below. A video of the hearings is available here.  Also, be sure to check out the Urban Legend’s impressions of the protest outside the courthouse and an Urban Legend editorial on this issue.

Final arguments begin with a question of standing

By Cassiel Chadwick and Jason Cinti

The historic hearings on the constitutionality of Proposition 8 began with lead defense attorney Charles Cooper arguing against same-sex marriage.

Cooper opened with a legal concept called standing, defined as the legal right to sue. Whether or not you have standing depends on if you’ve been affected by a case’s outcome; if not, you can’t ask the court for legal relief. For example, a person who witnesses a robbery in a store but is not harmed herself would not have standing to sue the person who robbed the store.

For the most part, standing is a simple technicality. However, standing has become an important issue in the same-sex marriage fight due to Gov. Arnold Schwarzenegger and Attorney General Jerry Brown’s decision not to defend Proposition 8 in court. Thus the state of California has no standing in the Proposition 8 case, an unusual situation. Because of this, Proposition 8 advocates are having trouble finding anyone with appropriate standing.

Cooper started off the discussion by citing several court cases that would allow the court to bypass the question of standing on the basis of precedent. Then Attorney Tyler Roberts stepped up, arguing that the deputy clerk for Imperial County, California, should be allowed to sue. If the law is struck down, Tyler argued, the clerk would be forced to grant marriage licenses to gay couples, thus changing her responsibilities.

Tyler barely had time to make his argument before the judges pounced. A rapid-fire train of question and answer culminated in Tyler’s disgrace as his argument fell apart at the legal seams.

As the first hour of the Prop 8 hearings concluded, the air of hostility between the judges and the attorneys came as no surprise. It is only natural, especially in a case with this much weight, to have attorneys thoroughly questioned and even shut down by the judges. It seemed as if every fact, opinion, or idea presented by an attorney, especially the pro-Prop 8 Cooper, was immediately questioned and/or rejected by one of the three judges.  Even so, it was hard not to cringe every time the attorneys presented a piece of biased or unbiased information for fear of what the judges’ response would be. The atmosphere of the room seemed tense, forceful, and very bitter.

The arguments continue: If California voters can ban same-sex marriage, can re-segregating schools be next?

By David Immerman and Hannah Sears

The hearings continued with David Boies, who represented George W. Bush in the landmark 2000 Bush v. Gore case before the Supreme Court. Boies argued that the proponents of Proposition 8 in this case did not have standing.  Judge Randy Smith questioned the implications of the California governor and attorney general refusing to defend the law and whether or not that is essentially a veto. A conclusion on the issue was not reached.

When Cooper spoke for the second time, he raised the question of “whether or not the definition of marriage … is one for the people themselves to resolve through the democratic process.” His stance was that the people have a right to overrule law as they did in passing Proposition 8. The California Supreme Court had previously ruled that same-sex marriage was legal under the California State Constitution. Judge Michael Daly Hawkins responded to Cooper’s argument by asking, “Could the people of California reinstitute school segregation via vote?” Cooper responded by referencing the clear illegality of segregation, saying it “would be inconsistent with the United States Constitution.”

Cooper went on to argue that Loving v. Virginia, the 1967 Supreme Court case that struck down Virginia’s 1924 ban on interracial marriage, is irrelevant to Perry v. Schwarzenegger on the grounds that there is “simply no legitimate rational basis on the purpose of marriage … to deny the right of a mixed race couple to marry,” while a same-sex couple does not fulfill what is, in the opinion of his side of the case, the main purpose of a couple in society, notably, to produce children.

The judges ruthlessly interrupted attorneys as they presented the reasoning behind their stances, bringing up important but controversial issues. Judge Stephen Reinhardt often caught Cooper off guard during his argument that a couple’s primary role in society is to create children, challenging the generalization. Judge Smith interjected as Cooper was presenting his thesis, showing the judges were probing for the crucial points not addressed in the briefs submitted by both sides prior to the hearing.

The arguments deepen: Defining marriage, limiting gay rights

By Jamie Friedman and Zoe Pleasure

As the hearing passed the hour mark, pro-Proposition 8 attorney Charles Cooper turned the discussion toward the meaning of the institution of marriage. He claimed that if the word marriage is redefined, then the institution cherished by many will be transformed.

Colorado’s Second Amendment, which was passed by voters in 1996 and prevented any city, town or county in Colorado from taking action to recognize gay and lesbian citizens as a protected class, was discussed at length. In 1996, the Supreme Court overturned Colorado’s Second Amendment in Romer v. Evans, calling it unconstitutional. Opponents of Proposition 8 point to similarities between it and the Colorado law, saying that Proposition 8 would limit the rights of gay and lesbian citizens in California. However, Cooper said that he only wished to preserve the institution of marriage for the purposes it has always served.

A strong rebuttal came from Attorney Theodore Olson, a former U.S. solicitor general under President George W. Bush. Olson argued in support of same-sex marriage, declaring that the right to marry for all individuals is a fundamental right in the Constitution. Judge Reinhardt questioned Olson on this point, and Olson responded that it is unconstitutional to take away an individual’s right of marriage. The right to marry belongs to the individual, he argued, adding that this right is similar to the right of liberty and the right to privacy.

As we watched this section of the hearings we found ourselves questioning some of the claims being made. Who should have the power to define the institution of marriage? Doesn’t the definition depend on each couple? We believe that any couple that maintains a loving relationship should have the right to marry. This right should not depend on their sexual orientation. Denying same-sex couples this right is discriminating against a section of the population of California.

The hearings conclude with a focus on impact

By Jessie King Fredel and Sam Lucas

In the last half hour of the Proposition 8 hearing, the idea of the institution of marriage and its effects on  society was discussed at length.

Judge Smith made the point that the ban on same-sex marriage does not keep homosexual people from getting married, divorced, or having children.

Also raised was the question of whether or not allowing same-sex marriage will affect the institution of marriage as it has been defined up until now. Proposition 8 opponents say that allowing same-sex couples to marry will not change the relationship between heterosexual couples, or the way in which other people interact. Judge Smith made the point that no changes in heterosexual marriage would be made as a result of allowing same-sex marriage.

As the hearings began, it’s important to note that both of us were biased in favor of same-sex marriage. And as the hearings concluded, our point of view solidified. Same-sex marriages, thus far in our lives, have not affected the way in which we interact with people, which seems to us to prove that legalizing same-sex marriage would not affect heterosexual relationships in the future. We believe that prohibiting same-sex marriage on the basis harm heterosexual relationships is, in fact, an act of discrimination.