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Prop 8 Hearings Underway and Televised

By Jeralyn, Section Civil Liberties
Posted on Mon Dec 06, 2010 at 12:50:15 PM EST
Tags: Prop 8 (all tags)
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The 9th Circuit's oral arguments on Prop 8 and gay marriage are being televised on C-Span. You can watch here.

The panel will first consider if the group that put the measure on the ballot is eligible to appeal since its members aren't responsible for enforcing marriage laws. Outgoing Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling. The panel will then hear arguments on the proposition's constitutionality.

Howard Mintz of the San Jose Mercury News is live-blogging from the courtroom. So is Teddy at Firedoglake.

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    Prop 8 Hearings Underway and Televised | 3 comments (3 topical)

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    The proponents have three big problems: (5.00 / 1) (#1)
    by Peter G on Tue Dec 07, 2010 at 12:00:27 AM EST
    one is probable lack of legal "standing" to appeal.  The second is that the repeal of an existing right, for the sole purpose of expressing popular disapproval of the folks enjoying the right, is unconstitutional under Romer.  The third, is a lack of rational basis for the denial of the opportunity to enjoy a fundamental right (really, a constellation of rights) to a disfavored class; that violates Lawrence.  The opponents of Prop 8 have only one serious problem, it seems to me:  Baker v. Nelson, although decided by the Supreme Court in 1972, is technically still binding precedent.  From listening to most of the argument, I didn't think that Ted Olsen actually had a good answer to that.

    Olsen should have read Wiki! (none / 0) (#2)
    by oculus on Tue Dec 07, 2010 at 01:15:32 AM EST


    Parent
    The Wiki article doesn't really address (5.00 / 1) (#5)
    by Peter G on Tue Dec 07, 2010 at 12:06:16 PM EST
    the main problem that the opponents of Prop 8 face w/ the 1972 S.Ct. summary precedent in Baker v Nelson.  Even though the presumed rationale for that decision is almost surely incompatible with later precedent, the S.Ct. itself has forbidden lower courts from taking the initiate to infer the overruling of on-point S.Ct. precedent.  Such precedents remain binding until expressly overruled by the SCOTUS itself.  See, e.g., Tenet v. Doe, 544 U.S. 1, 10-11 (2005); Agostini v Felton, 521 U.S. 203, 237 (1997). Ted Olson's argument (I misspelled his name above) is only that later case law, such as Lawrence, undermines Nelson.  But that is supposed to be a bootless argument, as Olson (a former Solicitor General of the U.S.) must know.  Judge Walker ignored this problem in his lower court Prop 8 decision.  I wish this weren't true, but it is.  In fact, this may be why the Ninth Circuit judges were suggesting a reversal under a Romer analysis -- if they find standing -- rather than under Lawrence.  We shall see what eventuates.

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    Prop 8 Hearings Underway and Televised | 3 comments (3 topical)

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