I was privileged to sit in the Ninth Circuit’s courtroom on Monday as the three judge panel heard oral arguments on the constitutionality of Proposition 8, the amendment to the California Constitution that voters approved in 2008  that defines marriage as one man and one woman.  ADF attorneys have been aiding Charles Cooper, who argued in support of Prop 8.

      Stephen Reinhardt presided as head judge for the panel.  Judge Reinhardt clearly indicated by his questions and statements that he wants a final ruling that says (1) the proponents (supporters) of Prop 8 have Article III standing to pursue the appeal (meaning that the appeal will not be dismissed because of procedural objections raised by the other side and that (2) Prop 8 violates the U.S. Constitution because people could enter into same-sex “marriages” for almost 5 months in 2008, but then had those rights “stripped away” by the passage of Prop 8.

       The first hour of the two hour oral argument concerned the standing question, whether the Prop 8 proponents could appeal the loss from the District Court.  Issues on Article III standing can be mind-numbingly complex and boring.  Basically, it means that if a party has not suffered a concrete injury, it lacks “standing” to come to court and ask for relief.  Judges Hawkins and Smith asked many questions about whether the proponents of Prop 8, and Imperial County, have standing to appeal the case.  It is possible that the final decision will only discuss standing, but I am not expecting that.  I believe Judge Reinhardt will find a way to convince at least one of the other judges to go with him on the standing issue so they can address the merits of Prop 8′s constitutionality.

      Although Judge Reinhardt  indicated that he believes Prop 8 is unconstitutional, he expressed open concern to Ted Olson that his legal arguments favoring a constitutional right to marry a same-sex partner were too wide-sweeping and needed to be reined in. I counted at least three times that Judge Reinhardt cautioned Ted Olson to embrace a more-modest legal argument that would only invalidate California’s marriage amendment, and not necessarily the ones in 29 other state constitutions.  I guess Judge Reinhardt is concerned that a wide-sweeping legal theory that some of the judges might be reluctant to adopt Ted Olson’s legal theories that would potentially invalidate all 30 state constitutional amendments defining marriage as one man and one woman.  Judge Reinhardt seems to desire to win by a base hit, and not go for the grand slam home run.  

     Judge Reinhardt’s more targeted argument states that because same-sex marriage was legal for a few months in California, then it is unconstitutional for the voters to “strip” that right via a voter initiative.  But this restrained theory is dubious, too.  First, it is perfectly constitutional for a state to define marriage as one man and one woman.  And a state does not lose that power if it redefines marriage for a short time, realize the error of doing so, and changes back to the regular definition of marriage.  The Constitution does not prohibit states from experimenting – they can expand rights for individuals, but then draw them back if the states find their experiment to have unexpected problems or consequences.  As Charles Cooper argued in his opening brief to the Ninth Circuit:

Such a regime not only would be “destructive of a State’s democratic processes and of its ability to experiment,” but it would affirmatively “discourage[] the States from providing greater protection” to their citizens than the Fourteenth Amendment requires.  Crawford v. Board of Education, 458 U.S. 527, 535, 539 (1982).  “In short, having gone beyond the requriments of the Federal Constitution, [California] was free to return … to the standard prevailing generally throughout the United States.”  Id. at 542.

       Appellants’ Reply Brief at 76.   In other words, if the California Supreme Court ruled that the state constitution grants 16 year olds the right to vote, or that the state constitution granted a right to polygamy, there would be no problem under the federal constitution with the voters correcting the state supreme court by amending the state constitution and reinstating the 18-year-old voting age or the definition of marriage as one man and one woman.  This is especially true when the same-sex couples who obtained marriage licenses during that almost 5 month window in 2008 still retain legally valid marriage licenses. 

      It is unclear whether the Ninth Circuit panel will decide the case on standing, or get to the merits of whether Prop 8 is constitutional.  Nor is it clear how long it will take the panel to issue an opinion.  What can be safely predicted is that the case is probably headed to the U.S. Supreme Court.