Resuming after the ten-minute break, the attorneys will in this second hour address the actual issues of the Prop 8 case, having addressed issues of standing and answered the Appeals Court judges’ questions on that topic (covered in parts 1 & 2 of today’s MyFDL liveblogging)

For those of you not watching at home (here) I’ll just say that the courtroom is much more ornate than the spare modern courtroom Judge Walker presided in.

Officer calling people to order, will resume shortly.

Clerk has gone to find some judges. Clerk has returned to the courtroom.

“All rise!”

Proceeding with second half.

Cooper: Good morning to you again, your honor. Americans, and Californians, are engaged in a meaningful debate about the ancient and ubiquitous institution, that goes to the survivial of the human race. The fundamental question, the definition of marriage — is it something for the people to resolve, as they did in CA? Or should the officers —

Q: Could the people of CA reinstitute school segregation?

C: No, inconsistent iwth SCOTUS

Q: But they couldhave done in 1870 or 1890?

C: Yes, perhaps,

Q: how is this unlike?

C: This is NOTHING like the racial restrictions in for instance Loving. There were no reasonable interests from prohibiting a mixed race couple from marrinh —

Q: You suggest that Baker would say that marriage, governed by the state, that the state has an absolute right to make rules about marriage?

C: Yes

Q: So Loving falls into those categories?

C: Yes

Q: What do I say when confronting the notion in Turner v Saffrey, dealing with prison inmates’ rights to marry?

C: The issue here: what is the distinguishing characteristics of asam-sex couples —

Q: Are you arging that there is a rational basis for the federal courts to get inolved>

C: we argue that if the courts get involved, then there is a rational basis, ths court must get involved — since TIME IMMEMORIAL , there’s no rational basis for marriage between two people. This is the test that applies, there is a clear rational basis for the traditional basis. The clear reason for marriage is that sexual relationahips produce children. No matter how committed a platonic relationship is, but when it becomes sexual — society has a vital interest. First, society needs to produce its next generation. Second, society’s interests are threatened by an unintentional unwated pregnancy. A mother raising her child alone directly threatens society’s interests, since society has to assist (usually the mother) in raising the child.

Q: That sounds like a good argument for prohibiting divorce, but how does it relate to two males or two female creating a family unit with children (laughter)?

C” Your honor, the quesiton is whether CA has the right to intervene where the phenomenon of unwanted unintended children.

Q: What is the rational basis when CA law says homosexual couples have all the rights of married couples? If they have all the rights of heterosexual couples, you are left with a word: MARRIAGE. What is the rational basis for that?

C: You are left with a word, and the institution it represents. You redefine the word, you redefine the institution. You cannot separate the two. The name of marriage is the institution. Will it be redefined to be a genderless institution with no relaiton to procreation?

Q: Isn’t this EXACTLY like Romer, in that it took away rights already granted to people?

C: That case took aways —

Q: So if you took aaway a bunch of rights, that’s okay? But you can’t take away one right?

C: Um

Q” Did or did not same -sex couples have the right to marry?

C: yes, they had the right, and the poeple voted it down.

Q: How is that different from CO telling localities they couldn’t protect homosexuals?

C: Measure 2 made homosexuals strangers to the law, an isolated case with no rights. The traditional definition of marriage, on th eother hand, has existed FOREVER in this country and in civilization. Since the founding of CA, and throughtout THE WORLD FOR ALL TIME, marriage hasn’t been anything but what it is. In this case, we are governed by the Crawford case, where the court said it would “refuse to interpret the 14th amendment when the state constitution vests final authority”

Q: but you already told us CA people can’t reinstitute school segregation. Reads Justice Kennedy’s opening of Romer. Aren’t you flying right in the face of creating a separate class of citizens?

C: the constitution doesn’t permit people to distinguish between classes.

Q: CO people said they were simply “leveling the playing field”

C: No, they opened gays and lesbians up to private discrimination, and as J Kennedy noted, they would be strangers — with no access to the normal pursuits of civic participation and citizenship. Far far different from adhering to the definition of marriage that has prevailed FOR TIME IMMEMORIAL. Are there distinquishing characteristics in the opposite-sex definition of marriage?

Q: Is it the preference of the proponents, presuming you have standing —

C: I accept that assumptuion [laughter]

Q: Do you want us to get to the merits here? Do you want us to sidestep Baker?

C: No, Baker is binding on this court. This is not the first court to take up 14th’s effect on these issues. Eight courts have taken them up — all eight have rejected the 14th amendment arguments against traditional marriage definitions.

Q: There are some differences: Baker was before Romer and before Lawrence. Also, rights here were taken awya.

C: That is a fair point, there had not been earlier …. um period in which CA Supremes had essentially legalized same-sex marriage.

Q: THe CA Supreme didn’t pull a rabbit out of a hat, they found a right in the constitution!

C: The CA constitution vests the power in the people to change the laws and their own constitution. We came to CA supremes the same way we come here — in the Crawford case, which is on the point of this. The CA courts had interpreted the CA constitution to go beyond what the federal constitution requires, and the people brought it back. The CA Supremes rules that the people maintain the ultimate power.

Q: Of course they can amend the constitution, but it depends upon whast you are amending. No one suggest s you can’t amend the constitution, the question can you amend it to affect fundamental rights? Is the amendment valid?

C: the point of Crawford is that the people are free to overrule their legislature and their courts?

Q: But the people couldn’t reinstitute school segregation, right?

C : Because the federal constitution doesn’t allow them to. If the CA constitution provided for racial segregation in schools, the federal constitution would outlaw that. An intervening case wouldn’t affect things. If prop 8 had been enacted before the CA Supremes invalidated traditional marriage, the constitutional case woul dbe the same as it is coming to you now — to reverse the people”s vote, unless the federal constitution is violated.

Q: If you take away a right from a particular class without any reasonable reason, and only directed at a single class, in a manner that is not invidious but bias — and you can derive that bias from the action itslef. Here, you have to take in to account all the aspects of marriage except for the title, the word? You get into the constitutional question right there.

C: The poeple of CA needed no reason beyond believing that their constitution invalidated same-sex marriage.

Q: So did the people of CO in Romer? There has to be a rational basis, and it can’ t be related to bias?

C: Yes, but if there had not been this previous period, it would come to you in the same constitutional profile it comes to you now. It isn’t different just because there were same sex marriages before.

Q: Would it really be the same if CA hadn’t already gone that far? Is it different if you’re taking something away? Is that a federal question? City of SF particularly says it’s different if you’re taknig something away.

C: I don’t deny that proposition has merit, but in the CA Court had invalidated traditional marriage and the CA Supremes had reversed that — no one would say that during the interim the right had existed and the Supremes had stripped that right. We submit the people act as a tribunal.

Q: Suppose 8 had also disallowed civil unions? Would you have the same arguyment?

C: I believe the argument I’m making here would be the same. But the argument for the constitutionality — perhaps the constitutionality of THAT result.

Q: So you’re uncertain if they’s added civil unioins. What if they’d denied hospital visits?

C: This proposition, No, Anytime a state goes beyond what the federal constitution demands, then the people are free to return to the standard generallly prevailing in the UNited States.

Q: So the prop could have got rid of civil unions?

C: Yes, unless the federal constitution requires the states to afford civil unions?

Q: how is that different form Romer?

C: No your honor, the things put in place in Romer, this wasn’t just a repeal of provisions in local governments. J Kennedy said if that had been all it was, it wouldn’t be objectionable. BUt it went way beyond that.

Q: Coupld questions; some states haven’t extended rights to homosexuals. Do they have more right to limit marriage rights? If there weren’t all kinds of rights given to homosexuals in CA, I’m asking you: some states haven’t done it. Do they have a stronger rational basis?

C: It would be quite perverse for the state of CA to take everything away they ‘ve already given, prop 8 preserved traditional marriage only for opposite-sex couples.

Q: My worry is in your situaion: I’m trying to find the rational basis in this particular basis, when CA has gone as far as it has, has CA just tried to promote a special relationahsip, is that enough to provide a rational basis?

C: For the unique purposes traditional marriage has always served: the natural procreative capability of men and women. The courts have uniformly noted that it is entirely rational — Nebraska, identical language — retained inducements and beenfits for married people especially when they’ve accidentally created children. Same-sex couples don’t have those vital procreative capabilities.

Q: Judge has given me more time, and this quersiton: doe sthis case desreve heightened scrutiny as Justice OConnor called for?

C: The essential proposition is that the main objection to the rationale I’ve proposed here is that infertile couples can marry. No society has ever insisted that married couples produce children. But — how would society draw that line? Orwellian measures to police fertility before marriage, those marriages would deny the rights of couples involved.

Q: I hope you didn’t go too long and take out your rebuttal — we’ll reserve two minutes.

OLSON UP NOW

O: CA has engraved discrimination by sex and orientation into its governing document. Marginalized and stripped over a million gay couples of the most important relation in life —

Q: This difference between taking the right away versus never having granted it.

O: Yes, your honor, in housing as well as Romer, SCOTUS has said that taking away a right makes a huge difference. SCOTUS has said that taking away rights enhances the effect of the constitutional change.

Q: What about Cooper’s case regarding methods of bring diversity — the Crawford case?

O” In Crawford the people can restrict — but not once does Crawford say an inisitive measure rises above the 14th amendment.

Q: So gay marriage is in the us constitution?

C: SCOTUS has never said man-woman marriage is the only kind of marriage. In all contexts, the right to marry is an aspect of the right to liberty and identity.

Q: Is your argument that there is a right to gay marriage? you’re arguing they are taking away a constitutional right?

O: They are taking away a constitutional right, not to gay mariage or single-sex marriage any more than the court rules on interracial marriage in Loving.

Q: We’re entitled to knwo, in your answer to Crawford, is this taking away a constitutional right under the 14th amebnement?

O: The right of an individual is what at’s stake. Not the society, not the rights of a constitution, not the right of procreation. If the people can deny this right, they can deny any right, including those of procreative couples! This isn’t about a couple’s right, it’s about the rights of two individuals. “Marriage is a coming-together, it is an association that promotes a way of life….”

Q: Mr Olson, I’m not going to express a view of gay marriage or any marriage at this point. If we accept your view that everybody has a right to marry, we might accpt that view. But if we don’t have to reach the constitutional quesiton, we won’t. So I ask you, in order to distinguish Crawford, is it necessary for us to take the position that no one can take away rights under the 14th amenment>

O: Romer says that even under a rational basis, but Crawford is completely separate. The citizens can change non-constitutional remedies, therefore Crawford case has nothing to do with this case, it cannot possibly penetrate the other four cases, Lawrence, Romer, Griswold. SCOTUS has said, under Lawrence, that sexual relations are a fundamental right. How, then can a constitutionally protected activity (sex) take away the right of marriage, which is the right of all citizens? If everyone can marry, as a right, how can who they constitutionally can have sex with be the basis for denying them the right to marry? The proponents cannot com e up with a reason: the ballot materials first state that it was to protect our children form thidnking that gay marriage is okay. It’s in the ballot measure, in the initiative itself. It must be something about gay people marrying that offends CA voters. Then they retreated from that position, now they say if gay marriage were permitted, will “make children prematurely preoccupied with issues of sexuality.”

O: On that basis, you could ban comix, teevee, and conversations with other children! [laughter]

Q: Assume rational basis, do we look to the district court case, or presume there is imaginary rational basis?

O: In Romer case, we must look into the actual reasons, not attenuated or motivated by fear of people we odn’t like. J Kennedy says it must be rational. Fear of what our children think of these people, presumes there some thing wrong with this people.

Q: if this accidental pregnancy argument is rational, have the proponents given up that arguemtns (the clerk) can that be a rational basis?

O: There is no way prop 8 has anything to do iwth heterosexual marriage. Same sex marriage won’t rpevent them from marrying or divorcing or having children. The elimination of prop 8 can’t affect heterorsexual marriage. Witnesses say there woul dbe no harm. When Cooper was asked what harm, he said none. Cooper was saying we don’t know the impact on the very important institution of marriage.

Q; People in political campaigns make nonense arguments all the time….

O: I haven’t heard that [laughter]

Q: but if this is legislative, and there’s a rational basis to uphold the legislative facts, then the people can act this way.

O” all the witnesses, all the experts, all the plaintiffs suggest this is immutable. As well as the damage done by this discrimination, which also rises to a heightened concern. What conceivable thing can we imagine is the damage being done to people by same-sex marriage?

Q: I’ll give that try, do you beleive that distinguidhing marriage from civil unions — when children are most likely to survive when raised by a mother and a father.

O: It goes against the evidence —

Q: Only if you believe what the judge says the evidence says — but setting aside marriage because of procreation, is it then irrational?

O: Yes, Cooper specifically said the name is the institution. Verbatim. The witnesses who cam eforward – not the statements and review articles put forward but not questioned — we had court testimony and there is nothing to suggest that children thrive more in one kind of marriage than another. It’s easy to say it’s better for a child to be with a mother and a father, but the remedy doesn’t fit that problem. Restricting marriage to only opposite=sex marriages doesn’t remove children from same-sex homes. But if you have marriages, as you do now, where there are children, this proposition doesn’t address this.

Q: Are we free to use something other than rational basis in the 9th circuit?

O: Yes, Hernandez suggests you can use heightened enhanced scrutiny.

Q: How about our Witt case?

O: Supports what I just said, yes.

Q: The factual circumstances alone would permit us to hold differently than another three-judge panel in this circuit?

O: Yes, it can. I can’t do better than your honor’s reasoning in that case. When the facts are different and the case is different — when things are different, the judgment can be different. CA has a crazy-quilt marriage system now. [goes thorugh the irrational system that exists]. What this case comes down to is that CA has built a fence around its gay and lesbian citizens, and built a fence around marriage, which SCOTUS says is the most imporant relationship between people. BEcause these two fences restrict gays and lesbians from marriage, it is unconstitutional.

Q: Are we free to do anything other than decide the issue of repeal of an inititiave? Your closing speech would show that no state can prohibit gay marriage. Withdrawal might be unconstitutional, in that they enjoyed that right previously, while the honorific desgination. ARE WE FREE TO GO BEYOND CALIFORNIA? Can we go farther that the narrow grounds?

O: You could decide it narrowly, but there is nothing from SCOTUS that suggests you can’t look at the constitutional question: what has CA done? CA has put a classs of citizens in a different category. There’s no doubt it’s discrimination. There’s no doubt it’s done great harm. The only quesiton is: can it be done under rational basis? Despite my opponents’ argument defending traditional marriage, you can’t exclude this class of people from the right of marriage without showing a state benefit? There is none. If you’re saying they can’t participate in a right you’re showing both due process and…. other 14th.

Teresa Stewart for City of SF

Four things: first is imposes a special disability on homosexual people. CA regulates children and family law separately. CA law treats all families the same. Prop 8 had nothing to do with children.

Q: Are we talking about a label here?

S: Yes, but a very important label….

Q: My reason for asking; is a state that allows everything short of the label in a better position to enact a Prop 8 than a state that allows nothing?

S: I would say this, that denying rights across the board is unconstitutional. It treats them differently is a way the law does no where else.

Q: How

W: [reviews all the ways children and relationships are treated differently]

Q: Doesn’t the procreative argument show a rational basis?

S: No, your honor, because same-sex couples can and do procreate and their procreation is treated the sam eby the law even if it’s not the ‘old-fashioned way.’ I don’t think it works for the state to be rational in all these other ways of treating same-sex couples and their procreation. The fact that it’s largely symbolic makes the insult obvious. The state commands we call same-sex relationships differently even though we treat them the same: this is discrimination on its face. Also, makes the equal protection clause of our constitution unequal. This makes prop 8 inexplicable except for animus — but you need not infer animus, Because the proposition was based in bias. There’s not a need to infer, because it demeaned and relegated gay people to an inferior status. The proponents said we needed children to understand same-sex couples differently because they….

]30 seconds0

S: Proponents say the court must find the majority is bigots — but htat’s not so. It may not be born of hatred or an instinct to guard against people different from ourselves. Equal protection does not allow that.

Cooper: They talk about Loving a lot, but if Mr Loving had wanted to marry Mr Jeter, then the course would have ocme out differently, because another case came behind it with those same arguments. It did turn out differently at SCOTUS. The Baker case would have been on all fours in Loving, if it was a fact that same-sex couples produce children the same way opposite-sex couples produce children. The state has no different interest in that distinguishing characteristics?

Q: Do you have a case, or is this just good argument?

C: I’d like to think it’s both.

Q: Then I’d like the case, please.

C: Kleebird, Johnson against Ropison, where the court said inclusion of one group advances state interests but the inclusion of another group would not. I would also refer the case, very quickly -0-

Q: NOTHING’s been done very quickly here.

C: Yes your honor —

Q: And when you’re in the red, that isn’t the itme you have left, it’s how far OVER you are —

C: If I may have 30 seconds more to address Romer, Amendment 2 was unprecedented and unique — it was unconstitutional. Prop 8 didn’t make this class of persons strangers to the law.

REINHARDT: Thank you all for a fascinating argument this morning, the court will stand adjourned.

ALL RISE.

Done.