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Legal giants David Boies and Ted Olson appeared once again on behalf of their clients to argue that California’s Proposition 8, which effectively banned same sex marriages, is unconstitutional. This time that forum was the 9th Circuit Court of Appeals and this time it was televised live. The oral arguments in the case lasted nearly three hours and were divided between procedural issues and the issues directly involved in the case. While it is always difficult to make predictions based on the questions that judges ask, I’ll go out on a limb and do so anyway. I would expect the three judge panel to find that the supporters of the initiative, but not the deputy clerk of Imperial County, have standing to appeal by carving out an exception to the standing rules for sponsors of ballot initiatives that are being challenged in court. Furthermore, I believe the three judge panel, composed of one moderate conservative, one very liberal and one center-left judge will uphold the lower court’s injunction barring the enforcement of Prop 8. My best guess is that they will limit the scope of the ruling based either on the fact that California once gave same sex couples the right to marry so taking it away is particularly offensive to the 14th amendment, or based on the fact that California gives gay couples all the rights and benefits of marriage and so denying them just the name is a clear equal rights violation. Either way, the ruling won’t go so far as to say that gay marriage is a constitutional right.
You can read live blogs covering the arguments here and here or see an expanded version of my analysis here.
