California Proposition 8/Gay Marriage Appeal Hearing Live at 10 a.m. PST


Here are various links to watch or listen live in the Bay area, California or remotely from around the country/world.

LIVE LINK HERE TO CSPAN COVERAGE OF HEARING

Ninth Circuit to hear and broadcast appellate arguments today

Appellate arguments in Perry v. Schwarzenegger begin at 10am PST today.

The proceedings are expected to last for about two hours. During the first hour, lawyers will argue whether Proposition 8 supporters have standing to appeal U.S. District Judge Vaughn Walker’s August decision, which struck down California’s gay marriage ban.:  During the second hour, attorneys will address whether the ban violates the U.S. Constitution.

Both sides expect to weather vigorous questioning from a three-judge panel featuring Ninth Circuit judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith.

The panel will sit in Courtroom One of the James R. Browning U.S. Courthouse in San Francisco.:  Public seating will not be available there.:  However, several media outlets, law schools, and courthouses are hosting live broadcasts of the proceedings.:  Please click below for details on how to attend or tune in.

TELEVISION: C-SPAN will broadcast the proceedings nationwide.:  Bay Area residents can view that feed on Channel 15 or tune in to another broadcast on ABC’s Channel 7.

RADIO: California Public Radio will air the arguments in a special broadcast of The California Report, which can be heard on 35 California stations, including 88.5FM in San Francisco and 89.3FM in Sacramento.:  The proceedings will also be available on 801AM, KGO Newstalk.

ONLINE::  The outlets listed above will stream the proceedings on their websites.

LAW SCHOOLS: UC Berkeley School of Law will host a live, closed-circuit feed of the proceedings in Room 115.:  Other law schools hosting on-campus viewings include Harvard, NYU, Stanford, University of Arizona, UC Hastings, UCLA, University of Chicago, and Yale.

COURTHOUSES: Federal courthouses in the following cities will host viewings for the public:

Boston, MA::  Courtroom 11, 5th Floor, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way.

Brooklyn, NY::  Courtroom 6A, 6th Floor, Theodore Roosevelt U.S. Courthouse, 225 Cadman Plaza East.

Pasadena, CA::  Mezzanine Conference Room, Richard H. Chambers U.S. Courthouse, 125 South Grand Ave.

Portland, OR::  Pioneer Courtroom, U.S. Pioneer Courthouse, 700 SW Sixth Avenue.

San Francisco, CA::  Overflow areas of the James R. Browning U.S. Courthouse, 95 7th St.:  Another viewing will be hosted in the Ceremonial Courtroom located on the 19th Floor of the Philip Burton Federal Building & U.S. Courthouse, 450 Golden Gate Ave.

Seattle, WA::  Courtroom 1, 8th Floor, William K. Nakamura U.S. Courthouse, 1010 Fifth Ave.

Here are the issues:

A federal appeals panel in San Francisco will hear oral arguments Monday, Dec. 6, in the landmark challenge to Proposition 8 – California’s voter-passed constitutional amendment banning same-sex marriage.

Broadcast of the district court trial last January was disallowed due to objections by some witnesses who said they feared harassment. But only attorneys will appear before the court Monday, and the 9th Circuit has agreed to allow the proceedings to be broadcast on C-SPAN and in other venues around the country.

A three-judge panel will hear arguments regarding the appeal of a lower court decision that held Proposition 8 violates the federal Constitution’s guarantees to equal protection and due process of law.

The Aug. 4 decision from Judge Vaughn Walker was the first time a federal court had struck down a statewide same-sex marriage ban, and similar bans exist in the constitutions or statutes of 38 other states.

Another six states have interpreted existing law as excluding same-sex couples from marriage licensing. Only five states and the District of Columbia have marriage equality laws.

If the 9th Circuit U.S. Court of Appeals upholds the lower court decision, the ruling would make the bans in California and eight other western states unenforceable. But the decision of the 9th Circuit – whatever it is – will almost certainly be appealed to the U.S. Supreme Court, and a decision there could affect bans in all states.

But there are also numerous potential variations to this simple scenario.

The most prominent potential variation at the moment concerns whether the group that has been defending Proposition 8 in court has legal standing to bring its appeal to the 9th Circuit.

It is a dull question compared to the drama of the original three-week trial of witnesses who testified about how Proposition 8 had damaged their lives. But its resolution could have enormous consequences for the case and will consume one of two hours set aside for Monday’s appeal.

Here is some key information most court watchers will need to know and will want to take notice of Monday:

Case name: Perry v. Schwarzenegger is the shorthand name for the case. The full name is Perry v. Schwarzenegger and Hollingsworth et. al.

Time and Place: Monday, Dec. 6, 10 a.m. PDT (noon, CST)?at the 9th Circuit U.S. Court of Appeals, in San Francisco.

Where to watch: Nationally, C-SPAN will be broadcasting the proceedings live. Court enthusiasts can also go to the federal courthouse in select cities around the country to watch a live feed – in Boston; Brooklyn, N.Y.; Portland, Ore.; Seattle, Wash.; Pasadena, Calif.; and two other courthouses in San Francisco.

Plaintiffs, Jeff Zarrillo, Paul Katami, Kris Perry and Sandy Stier entering the Federal District Court House on July 2, 2009. Bill Wilson
Plaintiffs, Jeff Zarrillo, Paul Katami, Kris Perry and Sandy Stier entering the Federal District Court House on July 2, 2009. Bill Wilson

The Parties: Perry is Kristin Perry, one of four plaintiffs who originally filed the lawsuit challenging Proposition 8. Perry seeks to marry her partner of 10 years, Sandra Stiers. They have four children. The other two plaintiffs – also a couple – are Paul Katami and Jeff Zarrillo, who have been together for nine years.

The city of San Francisco was also designated as a plaintiff-intervenor in the district court, meaning the city did not bring the lawsuit but established that it had a governmental interest in the outcome.

Schwarzenegger is, of course, Republican Gov. Arnold Schwarzenegger, who represents the California government in the case. Neither Schwarzenegger nor California Attorney General Jerry Brown (now governor-elect) was willing to defend Proposition 8 in the appeal.

So the real appellants in the case are the original “proponents” of the ban, identified as the Yes on 8 campaign (aka ProtectMarriage.com), and include State Sen. Dennis Hollingsworth and others. In addition, the board of supervisors and clerk of Imperial County are seeking the right to serve as appellants as well.

The schedule: The first hour of the two-hour argument will be focused on the issue of whether the Yes on 8 appellants and/or Imperial County have legal standing to appeal the lower court’s decision (see below). There will be a “brief” break, and then the second hour will be focused on the merits of the appeal (see below). The entire proceeding is likely to be concluded by around 12:15 p.m. Pacific Time.

The attorneys: At least six attorneys will be involved in Monday’s argument – three on merits and three on standing.

On merits, famed conservative attorney Ted Olson will argue for the four plaintiffs, and Therese Stewart, the openly gay chief deputy city attorney for San Francisco, will present arguments for the city, which would like to see the ban struck down. Conservative attorney Charles Cooper, who led the defense of Proposition 8 at the district court trial, is expected to argue the merits for proponents.

On standing, it has not yet been announced who will argue the standing issue for plaintiffs, the Yes on 8 Proponents, or Imperial County.

Legal standing issue: Not just anybody can initiate a lawsuit and appeal the decision, but courts err on the side of allowing a party to appeal.

Nevertheless, a party or parties seeking to appeal must still show they are at least vulnerable to an “actual” injury because of the decision below. That injury can include an economic one, but it has to be an injury more “concrete” than the fact that appellants disagree with the lower court decision.

Proponents will argue that the fact they were allowed standing in the U.S. District Court should mean they should naturally have standing on appeal.

The merits: Two provisions of the U.S. Constitution’s 14th Amendment are at issue, both encompassed in this language: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Concerning due process, a state cannot deny citizens a fundamental right, including the right to marry, unless it can show a compelling reason to do so. U.S. District Court Judge Vaughn Walker said proponents failed to establish “any historical purpose for excluding same-sex couples from marriage, as states have never required spouses to have an ability or willingness to procreate in order to marry.”

With equal protection, the government may not treat one group of citizens with less favor than others unless it has a reason to do so. It may not treat oppressed minorities with less favor unless it has a compelling reason to do so.

Judge Walker ruled that gays and lesbians are an oppressed minority and that proponents failed to establish evidence of even a simple, rational reason to treat them differently, much less a compelling one.

The Judges: The 9th Circuit on Monday, Nov. 29, announced the three judges that will make up next Monday’s panel – and it’s a dramatic line-up.

The senior-most judge – in age and experience on the federal appeals bench – is Stephen Reinhardt, 79, a Carter nominee who has ruled favorably on gay-related cases before.

The least senior is N. Randy Smith, 69, a native of Utah, an appointee of President George W. Bush, and a graduate of Brigham Young University Law School, an entity of the Mormon Church which played an enormous role in promoting Proposition 8.

In the middle is Judge Michael Hawkins, 65, a Clinton appointee, based in Phoenix, Ariz.

Prop 8 proponents on Wednesday, Dec. 1, filed papers asking Reinhardt to recuse himself because his wife, Ramona Ripston, is executive director of the Southern California chapter of the ACLU, which has been actively involved in trying to invalidate Prop 8.

But Reinhardt on Thursday morning, Dec. 2, issued a statement refusing to step down from the trial, saying there is no legal reason to question his impartiality.

Timetable after argument: There is no deadline by which the three-judge panel must issue its opinion, however, a decision is likely to be forthcoming within a few months. The losing party then will almost certainly appeal that decision to the full 9th Circuit U.S. Court of Appeals,which may or may not agree to hear an appeal.

The losing party at that point would then likely appeal to the U.S. Supreme Court. The earliest the Supreme Court would likely get such an appeal would be in the fall of 2011, and the earliest it would rule would be in the late spring of 2012.

If the proponents or Imperial County lose on the question of standing, the 9th Circuit could decide not to make a ruling on the merits. But proponents and/or Imperial County would almost certainly appeal the decision concerning standing to the Supreme Court.

Should the Supreme Court rule that either of those parties has standing, it would then send the question on the merits of the appeal back to the 9th Circuit for a decision.

That eventual decision on the merits from the 9th Circuit could then be appealed to the Supreme Court. Wild guess timetable for a decision from the Supreme Court on merits with this scenario? 2014.

Archives of Gay Marriage/Proposition 8 on UNCOVERAGE.net

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