SAN FRANCISCO, California, November 23, 2010 (LifeSiteNews.com) – The 9th US Circuit Court of Appeals has decided that C-SPAN will televise oral arguments in the appeals process for Proposition 8, California’s embattled constitutional amendment upholding traditional marriage.
Both sides in the Perry v. Schwarzenegger case, which challenged the constitutionality of Prop. 8, will present arguments during a two-hour hearing on December 6, which C-SPAN will carry live starting at 10 a.m.
Proposition 8 is a ballot initiative approved by voters in 2008, which defines marriage in the state constitution as the union of a man and a woman. In August, U.S. District Judge Vaughn Walker ruled the state amendment unconstitutional under the U.S. Constitution, saying it violated the 14th Amendment’s guarantee of equal protection and due process.
Prop. 8 attorneys have argued against putting cameras in the courtroom, saying they threaten the court’s fair and impartial proceedings. The U.S. Supreme Court shared that position during the trial phase of Perry v. Schwarzenegger; it stepped in and vetoed Judge Walker’s proposal to televise the 13-day trial, implicitly agreeing with Prop. 8 attorneys that televised hearings could intimidate the defense and threaten to turn the legal battle into a modern “Scopes trial.”
However, given that the 9th Circuit will be televising just oral arguments, not conducting a trial, it is not likely the high court will step in again.
Opponents of Prop. 8 welcomed the 9th Circuit’s decision, saying it would allow the U.S. public to see for themselves the issues being debated in the case.
Both Attorney General Jerry Brown and Governor Arnold Schwarzenegger have refused to defend Prop. 8 in court, leaving the defense to private attorneys for ProtectMarriage.com, the group that brought the measure to the ballot in 2008.
The state’s refusal to defend Prop. 8 leaves the amendment’s fate in doubt. The federal appeals court will have to decide whether ProtectMarriage.com and other intervenors in the case can be given “standing” to represent the people of California when the state will not.
According to the court’s schedule, both sides will present oral arguments in two hour-long sessions. The first session will deal with the issue of standing for Prop. 8’s defenders and other procedural issues. (see order here)
The second session will address the constitutional questions. Defenders of Prop. 8 will have the first half hour to make their arguments. The next half hour goes to opponents of Prop. 8: first the Perry plaintiffs, then the City and County of San Francisco.
If the Prop. 8 interveners are determined by the court not to have standing, then same-sex “marriage” will become legal only in California, and the issue would not go to the U.S. Supreme Court. That will mean the end of the road for Ted Olson and David Boies, the attorneys for Perry, who anticipated they could get the historic case taken to the high court.
If Prop. 8 interveners are denied standing, a possible remedy for the situation would be if the new California Attorney General asks to reopen the case, which could mean a new trial under a new federal district judge. California still has yet to complete counting all the ballots in the tightly contested AG race between Republican Steven Cooley and Democrat Kamala Harris. The count has seesawed between Cooley and Harris several times. The result must be certified by Nov. 30, although there may be plenty of legal challenges following.
Should the Prop. 8 interveners be granted standing in the case, however, the appeals process will continue and end at the U.S. Supreme Court. The high court’s swing justice, Anthony Kennedy, would likely be the deciding vote on whether to uphold the ban or strike it down and create a national right to same-sex “marriage.”