Gay marriage: all eyes on 9th Circuit panel


When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.


Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

The panel is hearing an appeal of an August ruling by San Francisco’s Chief U.S. District Court Judge Vaughn R. Walker, who ruled after a trial that the 2008 ballot measure violated the U.S. Constitution.

The appeals court is considering two questions: whether opponents of same-sex marriage have legal authority to appeal Walker’s ruling and whether the 2008 ballot measure that reinstated the marriage ban in California violates federal constitutional rights to due process and equal protection.

Besides looking for clues to Hawkins’ leanings, legal analysts said they would pay close attention to any comments from the judges on Walker’s factual findings. Walker ruled that the trial evidence showed that homosexuality was not easily changed and that children of same-sex couples fare just as well as those in opposite-sex households.

Monday’s extraordinary two-hour session will begin at 10 a.m. and is scheduled to be broadcast live on CSPAN. also will blog about the hearing live and post expert opinion from three law professors as they watch it.

Some of the nation’s top lawyers will be making the arguments. Representing the challengers to Proposition 8, David Boies will argue that opponents of gay marriage lack authority to appeal, and Theodore Olson will handle the constitutional issues. Charles Cooper, a Washington-based lawyer, will represent, the sponsors of Proposition 8. All three have strong track records.


The 9th Circuit reserved the first hour for arguments on whether ProtectMarriage and Imperial County, where voters overwhelmingly supported Proposition 8, have authority or “standing” to challenge Walker’s ruling.

Federal courts have strict legal rules about who is allowed to pursue an appeal. The defendants in the Proposition 8 challenge were Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, but they declined to defend the law. As the losing parties, they had authority to appeal Walker’s ruling. But both Brown and Schwarzenegger hailed his decision and refused to appeal.

The two gay couples challenging Proposition 8 contend that ProtectMarriage lacks standing because the group is not directly affected by Walker’s ruling. They also argue that Imperial County can’t appeal because marriage is a statewide issue, and the state, not counties, enforces marriage laws.

ProtectMarriage has countered that it represents voters who supported Proposition 8 and had standing to defend it during a state challenge before the California Supreme Court. Imperial County has argued that it can appeal Walker’s ruling because it issues marriage licenses.

Although conservative jurists tend to be more restrictive about standing, that ideological tendency may not hold in this case, analysts said.

“I wouldn’t be surprised at all if two of these judges decide there is no standing,” said UC Davis law professor Vikram Amar. Even the liberal Reinhardt might agree that the supporters of Proposition 8 have no legal authority to appeal, Amar said.


Reinhardt, considered strongly supportive of gay rights, “may not want the case to go to the Supreme Court right now” on the constitutional questions, Amar said.

Many gay rights groups, including the ACLU, initially opposed the federal challenge of Proposition 8 because of fear that a majority of the high court might rule against gay marriage. A narrow ruling on standing could be appealed to the Supreme Court but the outcome would have limited effect on gay rights.

If the court rules that the supporters of Proposition 8 did not have authority to appeal, Walker’s ruling would stand and same-sex marriage would be permitted in California, the lawyers for the challengers have said. ProtectMarriage has countered that Walker’s ruling in that case should apply only to the two couples who filed suit.

On the constitutional questions, Olson will argue that Proposition 8 violated due process guarantees because it stripped away a fundamental right of all citizens and infringed on equal protection because it singled out one class of people.

Cooper is expected to argue that the ban on gay marriage simply reflected an age-old view that marriage was intended for the bearing of children by opposite-sex couples and that voters have the right to define marriage as it has been viewed through centuries.

A ruling could come at any time. Legal experts anticipate that a decision is at least a month away and possibly many months. The ruling could then be appealed to a larger panel of the 9th Circuit and up to the U.S. Supreme Court.