Gay Marriage Faces Next Court Test, C-Span To Cover Live

Later today, the legal fight over same-sex marriage will face it’s biggest court test yet as the 9th Circuit Court of Appeals hears oral argument in the case that declared California’s Proposition 8 unconstitutional:

SAN FRANCISCO — It has been more than two years since voters outlawed same-sex marriage with a ballot initiative in California, and it may be two more before the legality of that measure — Proposition 8 — is finally decided, most likely by the Supreme Court.

On Monday, however, the two sides in the debate will lock horns at the highest legal level yet, when a federal challenge to the law filed by two gay couples is heard by a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco.

But the lawyers involved expect few surprises when it comes to arguments.

“A lot of the stuff is going to be repeated,” said Jordan Lorence, senior counsel for the Alliance Defense Fund, a conservative legal group that has helped defend Proposition 8. “But what I hope is that it will not be the one-sided presentation of the facts the district court had in its opinion.”

That opinion was issued in August by Judge Vaughn R. Walker, who said that Proposition 8 was unconstitutional and in violation of the principles of due process and equal protection. The measure has remained in effect as the higher appellate court considers it.

The hearing on Monday will unfold in two parts and cover two issues. The first is the question of legal standing: the major defendants in the case — Gov. Arnold Schwarzenegger and Attorney General Jerry Brown — have opted not to defend the measure, leaving the defense to groups like Mr. Lorence’s.


The judges will spend the second part of Monday’s hearing on the actual legality of Proposition 8. Opponents have argued — and Judge Walker agreed — that voters had no legitimate state interest in defining marriage as exclusively between a man and a woman, and provided more than a dozen witnesses during testimony in January to back up their case. Supporters of the measure offered two witnesses.

Most unusually for a Federal Court proceeding, the full argument will be broadcast live on C-Span beginning at 10am Pacific (1pm Eastern) today. If nothing else, it’s an opportunity to see David Boies and Ted Olson, two of the best appellate lawyers in America, in action.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.