Mr. Cooper comes back for the second hour to discuss the merits of the case and he did a capable job given the problems with his argument. He made a lot of points — that Supreme Court precedent from 1972 governs here, that it was rational for California voters to restrict marriage rights and that it did not matter for the proposition's constitutionality that it was taking away a right that had been previously recognized by the California Supreme Court.
It is hard to imagine that Mr. Cooper really thinks those are strong arguments. First, a lot has changed since 1972, especially in the realm of gay rights — think Romer v. Evans and Lawrence v. Texas. Second, the 1972 case was not about sexual orientation discrimination in marriage; it was about sex discrimination. There is a host of literature on this point (too much to summarize here), but suffice it to say, it makes the cases quite different.
Third, Mr. Cooper's only reason for denial of marriage rights to gay couples was the state's interest in maintaining social structures that foster procreation. But, the Supreme Court long ago divorced procreation from marriage. It did so when it allowed single people the right to contraception; it did so when it granted the right to marry to mixed-race couples; it did so when it granted prison inmates the right to marry; and so on. Ted Olson pointed to "at least 14 cases" where procreation was never considered a rational basis to restrict marriage rights from people who couldn't procreate.
Fourth, Judge Reinhardt was skeptical of Mr. Cooper's suggestion that it doesn't matter that Prop 8 took away a right that existed before. That was the case in Romer, where Colorado voters took away the right for gays and lesbians to seek anti-discrimination protection from city and state legislatures. It existed before, it didn't after. "How is this different from Romer"? Judge Reinhardt asked. Mr. Cooper danced around this point with a fascinating twist. He, unlike every other attorney who argues against gay rights, expanded the holding in Romer — he made it broader, more all-encompassing — to suggest that the problem in Romer was not the taking away of a single right (which is what Prop 8 did re: marriage), but "made gays and lesbians strangers to the law" by taking away their access to all rights through the state legislature. This argument has merit as a distinguishing feature of the cases, but it does not mean the cases should come out differently. Romer did not hinge on the quantity or quality of rights taken away, which is Mr. Cooper's point. It hinged on the fact that the only reason for taking away whatever rights Colorado voters took away from gays was that they simply did not like gay people. And, mere distaste for a particular minority group on some moral ground is not a sufficiently rational basis to uphold the law.
Mr. Cooper also kept returning to his emotional argument, most likely because he knows that his legal argument is lacking. Six times, he repeated some form of the belief that an unelected judiciary should not be allowed to overturn the will of the people. Okay. Let's join that debate with the Anti-Federalists if you want, but the mere fact that our judiciary has the power of judicial review — where courts can invalidate legislation — means that, as a matter of law, the role of the judiciary is to sometimes reject the will of the people when that will conflicts with the Constitution. Mr. Cooper's argument has no legal merit, but it has emotional heft. It is, after all, what the anti-Judge Walker protests have been about (well, that, and Judge Walker's sexual orientation).
The response from Ted Olson carried few surprises. He made his argument about the evolution of marriage over the years and the inapplicability of the 1972 case Mr. Cooper used. He spent too much time on his own emotional argument — "these people love each other" came up a few times, for example — but his legal arguments were spot on. He danced around the question of rational basis, though. The rule is that a law will be upheld under rational basis review if there is any rational reason for it. It cannot be attenuated or not related, but it can be any real rational reason. The implication there is that judge because Judge Walker, in the district court opinion, went through all the given rationales for Prop 8 and found them lacking (with evidence, by the way), there still could be a real, specific rational reason waiting out there, and as long as the court found it, it would be ok to uphold Prop 8. Mr. Olson responded by reminding the court that any rational reason might be the rule, but it cannot be unrelated, it has to be specifically related to the law and it has to actually be furthered by the law. There is nothing further by Prop 8 other than base discrimination against gay people.
But then came a fascinating question. Does a state like California, which has domestic partnerships in an "everything but" marriage regime, have less of a reason to restrict marriage from gay couples than a state that has no union rights for gay couples? Or, does an "everything but" marriage state have more of a rational reason to ban gay marriage than, say, Alabama, which has no sexual orientation anti-discrimination law, no gay state-wide leaders and no civil unions. If you play chess, you can see three steps ahead here and what this means. If a state like California does done "everything but" marriage, it has said that there is really no reason why gays should not have the right to be together and do everything we let straight couples do. We just want to keep the name for religious, moral or tradition reasons. But, those reasons are insufficient to deny access to the institution. On the other hand, a state that has denied all rights to gays has kept its justifications for discrimination. A conservative state has said that gay unions should not be recognized for whatever reason; a pro-gay state has said gay couples should be together, which means they have no reason to keep them apart. It would then be easier for the conservative state to make its rational basis argument. Remember, all we need is one rational reason. When a state goes so far as to say "everything but" marriage, it is pretty much admitting that it sees no reason to keep gay couples apart.
Notice the consequence: If that is the case, then civil unions are a rest stop on the way to gay marriage. It is the slippery slope that Justice Scalia worried about in Lawrence and what opponents of civil unions bloviate about.
But, you can also answer the question the other way. A state that has "everything but" has made a calculated decision about marriage. It is pro-gay, there is no anti-gay bias in this state because it grants gays all sorts of rights. So, the impermissible bases for a law under rational basis — animus toward gays — cannot be the reason an "everything but" state has denied marriage to gays. On the other hand, an anti-gay state that has denied gays all sorts of rights is more likely to have done so because it simply dislikes gays and wants to discriminate against them.
WATCH THE FULL HEARINGS HERE.
When will we hear?
Not for a while. The average time it takes for an appellate court to issue a decision is about 3 months. The Ninth Circuit is particular back logged, so it may be longer.
What are the possible outcomes?
There are many. The court could deny standing. Or, the court could assume standing for the purposes of reaching the merits. If the court denies standing, the prop 8 proponents could give up and that would end the case. But, that is unlikely. They would likely ask for an en banc rehearing (basically, another hearing like we had yesterday, but before about 11 Ninth Circuit judges) and if they lose there, they can appeal to the Supreme Court. If the court assumes standing and decides the merits, that decision is likely to be overturned at the Supreme Court.
Can we marry once the court decides?
No. Only if the Prop 8 proponents are denied standing and then give up will marriage equality come back to California quickly. Even after the Ninth Circuit decision, we would likely have to wait a few days for official entry of Judge Walker's order.