• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Standing for Marriage: Perry on Appeal

    C-SPAN does not cover many federal appellate courts hearings. On Monday, in Perry v. Schwarzenegger, the case involving the constitutionality of California’s voter-approved Prop 8, the cable public service provider made a not-at-all surprising exception.

    Before a three-judge panel in a San Francisco courthouse, defenders of traditional marriage squared off against proponents of inventing a new federal constitutional right to marry a person of the same sex. The goal of the same-sex marriage proponents is to make history; the goal of traditional marriage proponents is to preserve a core institution of civil society and to keep the making of law within the elected branches of government.

    Monday’s hearing unfolded in two parts. The first hour was devoted to analysis of the complex standing issues in the case. Even after he permitted the case to proceed and held a full trial on marriage, federal district Judge Vaughn Walker ruled that the active party defending Prop 8, ProtectMarriage.org, did not have standing to appeal his ruling against it. ProtectMarriage.org remained in the judicial ring after California’s elected officials, including Governor Arnold Schwarzenegger and attorney general and Governor-elect Jerry Brown, announced that they would not represent the people of California against the challenge brought by the plaintiff Perry. Even the Los Angeles Times was concerned about such lie-down-and-play-dead maneuvers by elected officials.

    The standing issue was also argued by Imperial County, whose residents voted by a majority of nearly 70 percent in support of traditional marriage. Judge Walker waited until the last moment this past summer to deny Imperial County’s motion for standing in the case. The county was represented in the appeals court by its own attorney, Robert Tyler, who argued that standing followed from the fact that the county’s clerks, who serve a public overwhelmingly supportive of the state (and the nation’s) longstanding definition of marriage, would be compelled by Judge Walker’s ruling to issue state marriage licenses to couples the people of California had lawfully declared ineligible for them.

    Observers in the courtroom yesterday naturally differ and can only speculate on what the three-judge panel’s sharp questions imply about their cast of mind on the issues. The appeals panel itself was not devoid of the procedural oddities and questions that have plagued the Perry case from the beginning. Judge Stephen Reinhardt was active in questioning after rejecting a legal motion and public calls for him to recuse himself from the case in light of his wife’s apparent involvement in the litigation as an officer of the American Civil Liberties Union’s Southern California chapter.

    Charles Cooper, who led oral argument for ProtectMarriage.com, closed his argument on the standing question by suggesting to the judges that they could decline to resolve that key question and could ask the Supreme Court of California to clarify whether anything in state law requires public officials to defend the people they are elected to serve.

    The second half of the oral argument suggested that—assuming that the standing issues allow the litigation to go forward beyond the district court’s ruling—this very liberal circuit’s reputation could be reinforced any number of ways.

    In addition to questioning both sides’ attorneys about Supreme Court precedents like Loving v. Virginia and Romer v. Evans, the judges probed areas that received less attention in Judge Walker’s courtroom. For example, they questioned whether the distinction in California law between civil unions (which afford homosexual couples virtually all of the financial and legal benefits afforded to heterosexual couples) and marriage had any rational basis because of the very fact of the similarity of benefits. Ironically, the judges put their finger on the very thing on which both sides agree: Marriage and its meaning matter.

    As has become clear in other recent cases in federal court involving claims of irrational discrimination involving homosexual persons, the failure of the executive branch to perform its duties to defend duly enacted laws, or identify and support parties who will do so, is crucial not only to just outcomes but to the maintenance of public trust.

    Judicial activism coupled with executive malfeasance is a formula for national cynicism and fruitless furor.

    Posted in Culture [slideshow_deploy]

    8 Responses to Standing for Marriage: Perry on Appeal

    1. Bobbie says:

      As marriage is of spiritual and religious meaning to those who know it's true meaning, sex plays a minimum role, homosexuals prefer sex with their same gender does not promote the definition of marriage, which consists of the balance of human gender. The act of sex is not a necessity to survive and should not be treated as if…

    2. Pingback: Tweets that mention Standing for Marriage: Perry on Appeal | The Foundry: Conservative Policy News. -- Topsy.com

    3. Aaron, Harrisburg says:

      Our Vision

      Building an America where freedom, opportunity, prosperity, and civil society flourish

      Unless you're gay

    4. Scott in Athens, Geo says:

      I cannot see how this court could apply anything other than the "rational basis" standard in the case, which is normally the kiss of death for a challenger. But some courts have a way about themselves in finding a way.

      Sexual-orientation, even if immutable (which is still largly debatable), is not as readily apparent as race and gender, as well as this class is not devoid of political representation via lobbyist, the power to vote, politicians and sympathizers. Granted, the history of discrimination is present, but this can be countered with the argument that the label is one of conduct and not of character. These defining characteristics are essential to claiming a suspect class status.

      With rational basis set, "promoting, and incentivizing unions that may and should procreate for the continuation of our society and culture" is clearly enough to satisfy this test. However, I feel the answer to the Judge's question regarding whether Califonia's efforts to accommodate same-sex couples in many ways that opposite-sex couples are (preferred tax status, hospital visitation rights, etc.) has made this basis far less potent- a point neither side would concede.

    5. Leon Lundquist, Dura says:

      This Case goes to Representation, that is the Court usurping Representation. If you think Sausage Making in the Legislature is awful, then the grisly details of this California Mess is more criminal Court actions than it is Justice. These guys in the Ninth Circuit say the sky is orange with purple polka dots, but I could have sworn the sky was blue. Again this is a Christian Nation, God was used to unite the United States so it is too late now to push God out. The People are the Sovereigns in this Country. The question of the hour is does the Judicial Branch of Government serve their Sovereigns or is it like with Obama, they serve the Foreign Interest? So really, all three Branches of the Government are working against Americans.

      Take God out? I'm out. Marriage is beyond the Government mandate, beyond the limited power given to the Court. Ask me the Court doesn't have Jurisdiction over Marriage, that is the People's turf and that power wasn't granted to the Judicial Activists in the Ninth Circuit.

    6. Larry Welch, Idaho says:

      To Aaron of Harrisburg,

      Perhaps " Growing an America where freedom and perverse self-definitions …." Perhaps you would prefer that kind of America?

    7. Rick74 says:

      We will next move from this to consider whether multple spouse "marriages" should be allowed.

      Then, we can rule on what inter-species "marriages" should be legalized.

      The future is …

      … scary.

    8. Pingback: ADF Alliance Alert » Heritage Foundation: Perry on appeal

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×