It can
be difficult to read the tea leaves of which way a judge is thinking of ruling,
but this would be bad news, as it would permit the anti-gay bigots to appeal
the Prop 8 case even if the state of California refused to do so. LA Times:
The
California Supreme Court appeared ready Tuesday to rule that the backers of
Proposition 8 and other ballot measures have the right to defend them in court,
a stance that would give opponents of same-sex marriage the chance to champion
the initiative all the way to the U.S. Supreme Court.
During an hour of oral arguments,
several justices appeared skeptical that only elected state officials may
defend measures passed by voters, as gay-rights lawyers claimed.
The seven-member court will decide
within 90 days whether ProtectMarriage, the sponsors of Proposition 8, have the
right to represent the state in litigation. That ruling will clear the way for
the U.S. 9th Circuit Court of Appeals to decide whether ProtectMarriage had
standing to appeal U.S. District Judge Vaughn R. Walker's ruling against the
2008 ballot measure.
More on the
Prop 8 hearing in California
John provided a link to the live oral
hearing below. If you missed it, you can see the archived video here. CNN also has a
good rundown of the arguments and questions posed by the various justices.
In response to a question posed by Chief
Justice Tani Cantil-Sakauye, the attorneys from both sides sparred over whether
or not the state's interest "evaporates" when there is no one to
defend it in court.
Charles
Cooper, attorney for the ballot sponsors, said California specifically allows
voters to directly enact this kind of legislation, and that its official
sponsors should be allowed to step in when the state refuses to defend such
measures. But he was pressed hard by several justices over whether Prop 8
proponents could ultimately prove actual injury if same-sex marriages were allowed
to resume in the state.
However, Theodore Olson, a former
solicitor general in the Bush administration and a leading conservative lawyer,
said only state officials can defend state laws. He is defending a coalition of
same-sex couples and several civil rights groups.
"There is ample authority that
individuals do not have a right to defend a law unless they would suffer a
direct and immediate harm from its invalidation," Olson said. "The
proponents of Proposition 8 will not suffer any harm from a decision that
grants gay and lesbian Californians their fundamental civil right to
marry."
The
defender's of Prop 8 would have one believe it is all about protecting the
voter's rights, but I would argue there is no inherent right to vote on other's
civil rights, period.
"What happened after 9/11 — and I think even people on the right know this, whether they admit it or not — was deeply shameful. The atrocity should have been a unifying event, but instead it became a wedge issue. Fake heroes like Bernie Kerik, Rudy Giuliani, and, yes, George W. Bush raced to cash in on the horror. And then the attack was used to justify an unrelated war the neocons wanted to fight, for all the wrong reasons. A lot of other people behaved badly. How many of our professional pundits — people who should have understood very well what was happening — took the easy way out, turning a blind eye to the corruption and lending their support to the hijacking of the atrocity? The memory of 9/11 has been irrevocably poisoned; it has become an occasion for shame. And in its heart, the nation knows it." - Nobel Prize-winning economist Paul Krugman, writing for the New York Times.
