ONTD Political

The universe has excellent timing, sometimes. Just as DADT's getting the smackdown....

Marriage equality for same-sex couples will be front and center this Monday, December 6, as the U.S. Court of Appeals for the Ninth Circuit in San Francisco hears oral argument in the appeal of the federal District Court ruling striking down California's infamous Proposition 8, a ballot measure that amended the state Constitution to prohibit same-sex couples from marrying. The argument will be broadcast live on C-SPAN starting at 1pm Eastern/10am Pacific. My organization, Constitutional Accountability Center (CAC), has filed a friend of the court brief in this case in support of the ruling invalidating Prop 8, and my colleague Elizabeth Wydra (CAC's Chief Counsel) and I will be "live blogging" the argument right here on Huffington Post as soon as things get underway. Whether or not you can get to a TV, we hope you'll join us on Monday, as we discuss the proceedings, live. For now, here's a short preview of the case and what to expect during the argument.

The case itself, Perry v. Schwarzenegger, was brought by interesting legal bedfellows -- Ted Olson and David Boies - who famously squared off against each other in Bush v. Gore and have since joined forces to represent the same-sex couples who have challenged Prop 8. (We expect that both Olson and Boies -- two of the country's best appellate advocates -- will be sharing argument time on Monday.) For gay men and lesbians, the stakes in Perry could not be higher. Unlike other marriage cases that have been decided under state Constitutions and thus did not present issues of federal law that could be heard by the U.S. Supreme Court, at issue in Perry is whether the denial of marriage equality violates the U.S. Constitution. In August, District Judge Vaughn Walker, after a full trial on the merits, held that it does, and struck down Prop 8 as a violation of the equal protection and due process rights of same-sex couples under the Constitution's 14th Amendment. This means that if the Ninth Circuit rules on this issue one way or the other, the case could be headed to the Supreme Court.

But the Ninth Circuit may not even reach the merits, given a legal doctrine known as "standing," which in the context of this appeal would typically require those seeking to overturn Judge Walker's ruling to show that they would be harmed by it. The state of California declined to defend Prop 8, and its proponents intervened in the case in order to provide a defense. Thus, as a threshold matter, the Ninth Circuit will need to decide whether the sponsors of a ballot measure have the requisite "standing" to pursue an appeal of a ruling holding that the measure is unconstitutional.

The Court of Appeals has already indicated it intends to give lengthy consideration on Monday to all of these issues. In fact, before you tune in, be sure you've had a good meal. As oral arguments go, this one will be a marathon: the court has allotted a full two hours to hear the case, more than double the Ninth Circuit's usual argument time of 20 to 40 minutes per case. The first hour will be devoted to the issue of "standing," and the second to the merits of Judge Walker's ruling. Undoubtedly, unless you are a legal geek, you may not find the first hour of Monday's oral argument as fascinating as the second, but Elizabeth and I will do our best to liven it up.

Once we get to the second hour, expect to hear Prop 8 's supporters use the word "procreation" repeatedly -- their main argument is that prohibiting same-sex couples from marrying is rationally related to the state's interest in "responsible procreation and childrearing." (If that makes no sense to you, you aren't alone; it made none to Judge Walker.) For their part, Prop 8's opponents will be focused on "equality," and the fact that Prop 8 discriminatorily denies gay men and lesbians the right to marry, in violation of the 14th Amendment. Indeed, as we demonstrated in CAC's amicus brief, the Framers of the 14th Amendment considered the right to marry the person of one's choice to be a fundamental right, fully protected by that Amendment's Equal Protection Clause -- a right the Supreme Court finally vindicated for interracial couples in 1967, in the landmark case Loving v. Virginia.

With marriage equality hanging in the balance for same-sex couples, don't miss the chance to witness history in the making. We hope to see you right back here on Monday at 1pm Eastern/10am Pacific!
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piratesswoop 4th-Dec-2010 01:26 am (UTC)
teehee, oral.

someidiot 4th-Dec-2010 02:05 am (UTC)
I lol'd.
notgarystu 4th-Dec-2010 01:26 am (UTC)
At first I thought, "Ffffffffffffffffffff I'm going to be working. D:"

But then I realized that, coincidentally, I was scheduled for the night shift on Monday and then I was like, "FFFFFFFFFFFFFFFFFFFFF 8D"
mollywobbles867 4th-Dec-2010 01:38 am (UTC)

I'm going to cry. I have to be home all day anyway b/c we're getting a new fridge delivered. \o/

Thus, as a threshold matter, the Ninth Circuit will need to decide whether the sponsors of a ballot measure have the requisite "standing" to pursue an appeal of a ruling holding that the measure is unconstitutional.

The way this is phrased makes me think they don't have a chance.
belleweather 4th-Dec-2010 01:56 am (UTC)
OMG, really? Because that's the exact excuse I used to get my boss to let me work from home Monday so I could watch the arguments live. (We're getting a new fridge too, but my husband could totally have handled it on his own. He doesn't need me to supervise putting the perishables in the snowbank temporarily or anything...)
(no subject) - Anonymous - Expand
storminmay 4th-Dec-2010 02:25 am (UTC)
OH I HOPE SO. I'm home all day Monday and need people to freak out discuss this with because I can't with anyone I know IRL. :/
(no subject) - Anonymous - Expand
chantalzola 4th-Dec-2010 01:46 am (UTC)
I'm a little confused, is Schwarzenegger pro-gay marriage? I can only see out of one eye at the moment.
doverz 4th-Dec-2010 02:18 am (UTC)
I'm pretty sure he is, but he has to be the defendant/person being sued. I think it's kind of the same thing as Obama wanting to repeal DADT, but appealing the ruling.
silver_sandals 4th-Dec-2010 02:30 am (UTC)
10:00 Pacific Time... ;_; I won't be home till five. Will I miss the whole thing? At least that would mean less suspense...
origamicage 4th-Dec-2010 04:43 am (UTC)
We all know it will go the Supreme count either way and I'm afraid of the supreme court saying no
hinoema 4th-Dec-2010 04:54 am (UTC)
I believe if those seeking to overturn the judge's decision are found to have no standing (to be unable to prove harm from the ruling) It won't go *anywhere* and the ruling will stand.
(no subject) - Anonymous - Expand
wrestlingdog 4th-Dec-2010 04:52 am (UTC)
Shit, I'm totally pulling a late night to watch this unfold. (It'll start around 11:30 p.m. where I am. If it was a week later I would be back in the U.S. but w/e.) Who cares if my presentation the next day? This shit's more important.
juliet316 4th-Dec-2010 05:05 am (UTC)
Somebody better Live Post this. I've got an appointment Monday and won't be home until 2PM.
nyychick23513 4th-Dec-2010 02:34 pm (UTC)
Dammit, I have to work. D: I hope some news outlets live blog it so I can surreptitiously follow along on teh interwebz.
bnmc2005 4th-Dec-2010 04:28 pm (UTC)
God damnit I have a FINAL to write! why life why!!!!
schmanda 4th-Dec-2010 06:51 pm (UTC)
It would be bad form to take a popcorn popper to work with me Monday, right?
moonshaz 4th-Dec-2010 07:39 pm (UTC)
Just marked this on my calendar.
deja_vu822 4th-Dec-2010 09:39 pm (UTC)
I'll be here!
angry_chick 5th-Dec-2010 01:49 am (UTC)
Fuck I'm going to miss this live post... :(

I don't have a laptop anymore... all I have is this desktop and a PSP.
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