Oral arguments in Perry v. Schwarzenegger.

Perry v. Schwarzenegger is of course, a case challenging California’s Proposition 8, which limited marriage to heterosexuals. I didn’t watch the oral arguments live this afternoon, so I’ve been catching up by watching the video on C-SPAN: Perry v. Schwarzenegger.

Since I’m not a lawyer, it’s likely that I’ll go astray of the law in my comments. I’m not offering my comments as any kind of legal argument, but just as the impressions of a layman.

The first issue raised was whether the appellants have standing to appeal.

The Defendants.

The named defendants in the case are Arnold Schwarzenegger [Governor of California], Edmund G. Brown, Jr. [Attorney General of California], Mark B. Horton [Director of the California Department of Public Health], Linette Scott [Deputy Director of Health Information and Strategic Planning for the California Department of Public Health], Patrick O’Connell [Clerk-Recorder for Alameda County] and Dean C. Logan [Registrar-Recorder/County Clerk for Los Angeles County], all in their official capacities. None of the named defendants chose to defend.

Judge Walker, in the original case, allowed Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hakshing William Tam, Mark A. Jansson, and ProtectMarriage.com, as official proponents of Proposition 8, to intervene as defendants.

A rival and more extreme group, the Campaign for California Families, also sought to intervene, but their request was denied by Judge Walker. The defendant-intervenors from ProtectMarriage.com didn’t want the Campaign for California Families to join them as defendant-intervenors, feeling that their more extreme approach was likely to damage the defendants’ case.

Imperial County also sought to intervene as a defendant, but filed after the intervenor deadline. Imperial County’s request was denied.

My comment: It seems obvious to me that in this case there has to be an active defendant. Noxious as Proposition 8 was, the constitution of California does give citizens the right to legislate by referendum. To give a default judgment for the plaintiffs would effectively strip the citizens of that right at the whim of their officials. That means that either the named defendants must be compelled against their will to defend the law, a situation which is obviously not desirable, or other parties must be allowed to intervene. In my opinion, Judge Walker was correct in his decision and in his certification of defendant-intervenors.

The Appellants.

The appellants are the original defendant-intervenors plus the County of Imperial, the Board of Supervisors of the County of Imperial, and Isabel Vargas in her official capacity as Deputy Clerk/Deputy Commissioner of Civil Marriages for the County of Imperial. The question at hand is, do these appellants have the right to appeal?

My comment: It seems obvious to me that the defendant-intervenors from ProtectMarriage.com must have the right to appeal. They aren’t just acting on behalf of their own proposition; they are, in effect, acting on behalf of the citizens of California and those citizens’ right to legislate by referendum. If they are not allowed to appeal, the court will basically deny the citizens of California their full right of recourse to the courts. The defendant-intervenors in the original case obviously don’t have Article III standing to appeal; however they are for all practical purposes acting on behalf of the people of California, who do have Article III standing to appeal, and since the named defendants declined to defend or appeal, it would be absurd to deny, at this point, the right of the defendant-intervenors to appeal the decision.

On the other hand, I don’t see how Imperial County and the Board of Supervisors of Imperial County can have Article III standing to appeal. Article III standing is summarized as follows by lectlaw.com:

The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992) (Lujan). The party invoking federal jurisdiction bears the burden of establishing each of these elements. Id.

My Comment: On that basis, I think Imperial County’s attempt to intervene should be rejected, since Imperial County and its Board of Supervisors obviously do not have Article III standing.

Where Boies lost me was on Isabel Vargas. He argued that Vargas does not have standing to appeal because she is not bound by Judge Walker’s injunction. That led to a discussion of whether, if Proposition 8 is eventually thrown out, California officials would have to take Isabel Vargas to court to compel her to register same-sex marriages — a situation that would mean same-sex marriage in California must be legalized or prohibited on a county-by-county basis.

My comment: It may be true that Isabel Vargas is not bound by the injunction in the sense that she isn’t named in the injunction, but there’s no denying that she is affected by the injunction, since the possibility exists that she will be required to issue marriage licenses to same-sex couples, and she disagrees with that possibility. My take on this is that Isabel Vargas is certainly bound by the injunction, even if she’s only indirectly bound.

However, I think she should still be denied standing. First, she should be denied standing because she’s a Deputy County Clerk and has no authority to act independently as if she were the County Clerk. Second, she should be denied standing because she obviously doesn’t have Article III standing as a private citizen, nor is she trying to intervene as a private citizen — she’s attempting to intervene in her official capacity. Third, she should be denied standing in her official capacity because it’s part of her job as a county official to execute California marriage law. It is not any part of her job to have an opinion about California marriage law; therefore she cannot in her official capacity have any such opinions. In her official capacity, she has only a ministerial function which is unrelated to her personal opinions.

Anyway, that’s my uninformed opinion. I’ll be interested to see how the Court decides.

On the merits:

On the merits, Charles Cooper is a polished and formidable attorney, but he just doesn’t have a case.

He argues first that the people of California have a right to define marriage as they please. That assertion obviously flies in the face of Loving v. Virginia, so Cooper argues that there is no rational basis for anti-miscegenation laws. However, it seems to me that at this point he’s conceded that the people don’t have the right to define marriage in any way they please, so it’s necessary for him to go on and try to show a rational basis. He basically admits this, so what was the point in his first assertion?

Cooper argues that the reason marriage exists at all is that “sexual relationships between men and women naturally produce children.” That’s nonsense on the face of it, in that there is no objection to the marriage of infertile or elderly couples. It also ignores a multitude of other reasons for marriage. Federal law identifies 1158 rights and responsibilities of marriage, the majority of which have nothing whatsoever to do with reproduction or the rearing of children.

Cooper argues that society has an interest in encouraging reproduction. It seems to me that straight couples are managing to reproduce in numbers sufficiently great that society need not worry about the human race dropping below a viable number. If anything, society might do well to wonder whether we will over-reproduce beyond a viable number.

Cooper argues that society has an interest in encouraging that reproduction take place within marriage, rather than unintentionally outside of marriage which is likely to result in children being raised by their mother alone. Of course, accidental and unintentional reproduction is something that’s completely unknown in same-sex relationships. If society has an interest in seeing that children are raised by two parents, then society has an interest in protecting the rights of same-sex couples and their children when those couples do have children, by allowing for same-sex marriage.

Throwing aside his non-existent “rational basis,” Cooper argues that “the name of marriage is the institution, and the issue is whether it will be re-defined.”

What’s really interesting about this case (to me) is that the oral arguments on standing are far more interesting than the arguments on the merits. When it comes to arguing the merits of Proposition 8, the proponents really don’t have a single rational thing to say. Their arguments on the merits rest entirely on the hope that the judges will be sufficiently homophobic to believe that homophobia is rational.

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