Same-sex marriage: Can Prop. 8 sponsor appeal ruling ban is unconstitutional?
In a hearing Tuesday, California Supreme Court justices grilled attorneys for both sides in the Prop. 8 case. Their ruling on legal 'standing' may affect more than the ban on same-sex marriage.
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“It was clear that they had read all the briefs very carefully and knew the law. They asked very pointed questions on both sides so both had a great opportunity to make their arguments,” says Dusseault.Skip to next paragraph
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The San Diego Gay and Lesbian News (SDGLN) reported that Charles J. Cooper, the attorney for ProtectMarriage, was challenged on whether he could prove where there was tangible injury to the Prop. 8 proponents. It also reported that one justice dismissed Mr. Cooper’s citing of case law as having nothing to do with the initiative process.
SDGLN said Theodore Olson, another partner at Gibson, Dunn and Crutcher who is the attorney for the American Foundation for Equal Rights, also came under harsh questioning. It said both Mr. Olson, a former US solicitor general, and Cooper fidgeted nervously while being questioned by the justices.
Some supporters of same-sex marriage were not thrilled that the justices gave both sides similarly rough treatment.
“Clearly the justices questioned both Cooper and Olson vigorously, and while it seems unthinkable to me that the court would upend California’s democratic system of government by allowing a private group public standing, certainly they were giving that result consideration,” said Kate Kendell, executive director for the National Center for Lesbian Rights (NCLR).
“The justices were clearly disturbed by the idea that the governor and/or attorney general can exercise a pocket veto over a constitutional amendment enacted by the people,” says Tom Watson, co-founder of Love, Honor, Cherish, one of 40 groups that supports repealing Prop. 8.
But legal analysts warn of trying to predict anything tangible from oral arguments.
“Oral argument can be very misleading if you are expecting the justices to tip their hands as to what they are thinking by the questions they ask,” says Vik Amar, professor of law at University of California, Davis.