|David Boies (L) and Ted Olson (R)|
Shannon Minter of the National Center for Lesbian Rights breaks it down in a guest post at Pam's House Blend. There are two issues at stake in this appeal:
Keep in mind that Gov. Schwarzenegger and Atty. General Brown both declined to appeal Judge Walker's ruling that Prop 8 violates the 14th Amendment of the U.S. Constitution. The Pro-H8 side has to prove that can legally challenge Walker's ruling. To help bolster their position, they found someone who works for the state to join their fight, a clerk of the court from Imperial County.1. Do the proponents of Prop 8-and Imperial County, which is seeking to intervene in the case, have the right to appeal Judge Walker's ruling, even though they do not represent the State of California? The legal term for this question is whether the proponents have "standing" to appeal.2. Is Prop 8 unconstitutional?
That's right, folks. Nobody higher up on the food chain would give them the time of day, so they found some guy in a cubicle who is in no position to make any decisions about what goes on in the state of California.
It is never possible to predict how any judge will rule based on the questions that are asked at argument, but overall, today's argument seemed to go well for the plaintiffs. The panel asked difficult questions throughout and were particularly tough, on both sides, on the standing issue. In the end, they seemed skeptical that Imperial County has standing to be in the case. They also seemed to recognize that recent U.S. Supreme Court cases raise serious questions about whether the proponents of an initiative like Prop 8 have standing.
Some of the panel's questions hinted that they might ask the California Supreme Court to rule on whether California law gives the proponents of a ballot measure the power to force an appeal over the objections of the official representatives of the state (the governor and attorney general). Arguing on behalf of the plaintiffs, attorney David Boies forcefully argued that even if California law would allow the proponents to defend the initiative, the proponents still could not meet the federal requirements for bringing this appeal because they cannot show that they are directly affected in any way by whether same-sex couples can marry.There is no timetable for when the three-judge panel will rule, but it could be a few months, according to AmericaBlog's Lisa Keen:
The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court—during its almost inevitable appeal—would be 2012.David Boies talks about Monday's hearing on Hardball with Chris Matthews last night.