Everything You Ever Wanted to Know About the Prop 8 Trial

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    NEWSLETTERS

    Gene Cubbison reports

    Get ready for the next phase in the turbulent life of Proposition 8.

    When the marriage ban was declared unconstitutional earlier this year, proponents appealed to the 9th Circuit Court of Appeals. They'll hear oral arguments in the case on December 6th. CSPAN will broadcast the trial, and observers are expected to pack the court's overflow room. The LGBT Center in the Castro will host a live viewing party.

    The randomly-selected merits panel of judges is a study in diversity: Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith are liberal, moderate, and Mormon, respectively.

    The judges may never actually rule on the merits of Prop 8. First, they must rule on the merit of appellants' standing to challenge Judge Vaughn Walker's ruling. Usually in cases like these, the state of California defends the existing law. But both the Governor and Attorney General have declined to do so, leaving only the Prop 8 proponents. The 9th Circuit judges must decide whether they have legal permission to continue the appeal.

    According to the plaintiffs' attorneys, who represent gay couples that have been materially harmed by the marriage ban, only the state may appeal the ruling.

    The 9th Circuit has always taken action in the case. When Judge Walker declined to stay his decision, the 9th Circuit stepped in to grant a last-minute stay pending the appeal, and instructed the parties to address the issue of standing.

    The merits panel will hear two separate sets of arguments: the first regards standing, and the second regards Prop 8's constitutionality.

    It's unclear what would happen if the proponents are found to lack standing. The 9th Circuit might remand the case back to the District Court, in which case it would be heard by a different judge since Vaughn Walker is retiring. But in that case, with the state of California refusing to defend Prop 8 for the foreseeable future, Prop 8's prospects look very dim indeed.