Federal Judiciary

Prop. 8 hearing details

By Lyle Denniston

The Ninth Circuit Court on Monday afternoon spelled out its plan for the Dec. 6 oral argument on the constitutionality of California’s ban on same-sex marriage — “Proposition 8.”  The Court ordered a two-hour hearing, with fully half the time — the first hour — spent on the question of whether anyone has the right to appeal the federal judge’s order striking down the ban.  The hearing order is here.

The challengers to Prop. 8 have argued that neither those who backed the ballot measure, nor any local government in California, has a right to appeal U.S. District Judge Vaughn R. Walker’s ruling, in the wake of the decision by state officials not to contest it.  Judge Walker also questioned whether anyone has such “standing” to appeal in place of the state.  Both the Prop. 8 backers and Imperial County officials have asked the Circuit Court to allow them to appeal.

In Monday’s order, the Circuit Court said the first hour will be devoted to the “standing” question, and any other procedural matters.  The second hour will go to the constitutionality of Prop. 8.  The order specifically allots the time for those taking part, but notes that anyone involved can file objections to the schedule by Nov. 24.   Attempting to discourage multiple voices at the hearing, the Circuit Court specified that the only way any amicus could have a lawyer at the podium is if the party on that side of the case is willing “to give its full allotted time” to an amicus — a very remote prospect.  There is a long list of amici, on both sides of the case.

The case is Perry, et al., v. Schwarzenegger, et al., and Hollingsworth, et al. (Circuit docket 10-16696) and a consolidated case with the same title except that Imperial County is added as an appellant (docket 10-16751).  Whoever loses in the Circuit Court almost certainly will attempt to get it before the Supreme Court, but review there is not a certainty.

Monday’s hearing order did not mention the issue of live or delayed television broadcast of the Dec. 6 hearing.  The Circuit Court on Nov. 1 allowed TV broadcasting of its hearing on a controversial Arizona illegal alien control law.

Full post as published by SCOTUSBLOG on November 15, 2010 (boomark / email).