Prop. 8’s next day in court

High-interest, ‘quite unusual’ two-hour hearing will be televised

Scenes from two years’ worth of Proposition 8 rallies and protests.

Scenes from two years’ worth of Proposition 8 rallies and protests.


Visit for a timeline of marriage equality in California, links to transcripts from the original trial testimony and the full interview with McGeorge School of Law professor Lawrence C. Levine.
Watch the Proposition 8 hearing live on Monday, December 6, at 10 a.m. on C-SPAN.

This Monday, Proposition 8 will get another day in court. But don’t expect a final decision on whether the 2008 initiative, which eliminated marriage equality in California, is constitutional. Instead, the December 6 hearing before a three-judge panel at the 9th U.S. Circuit Court of Appeals will be a great opportunity for citizens to see how the judicial system actually works. The hearings will be televised as well, something that doesn’t typically happen.

“My sense is that it’s quite unusual,” said Lawrence C. Levine, a professor at McGeorge School of Law. “It is further evidence that the court knows that there’s enormous public interest.”

After being upheld by the California State Supreme Court, Prop. 8 was challenged in federal court as invalid under the U.S. Constitution and overturned last June. Now, U.S. District Judge Vaughn Walker’s decision is being appealed by proponents of Prop. 8 to the U.S. 9th Circuit, where arguments will be heard on Monday.

During the hearing, expect two hours of arguments presented in a very carefully formatted fashion, with a recess between each hour. The first hour will allow both sides to address issues of standing—that is, whether the proponents of Prop. 8 actually have standing to defend it, since the state has refused to do so—and the second hour will address the constitutionality of Prop. 8.

There will be no new evidence submitted; the time for producing evidence was during the original trial under Judge Walker. The hearing’s outcome depends largely on how much the judicial panel chooses to defer to the trial judge’s findings of fact. “This hearing will be two hours of arguments without any witnesses,” Levine summed up.

Levine also said that because Judge Walker created an “exhaustive” trial record, the hearing’s judges “may very well defer to the findings he made on the factual record.” But the judges, according to Levine, will have the option to review whether Prop. 8 violates Californians’ rights under the 14th Amendment—without deferring to the facts established through the trial.

The three-judge panel, which probably won’t make a decision until next spring, can uphold Walker’s ruling, overturn it or send it back to his court for a rehearing—although Levine says the third option is extremely unlikely. After the panel rules, either party has the option of appealing to the entire body of appellate judges in the 9th Circuit.

Levine is convinced, given the nature of this case, that no matter which way the panel rules, it will be appealed. This means yet another hearing, another wait for a ruling and, more than likely, another appeal—this time to the Supreme Court of the United States.

And that will take a very long time.

“This is actually hard to believe,” Levine explained, “but they are really moving quickly. This is being heard months earlier than would normally be expected.” He attributed the hearings’ speed to several circumstances, not the least of which is the court’s awareness of the high public interest in the case. But he would advise patience anyone who expects a quick answer.

This public interest has been constant ever since the proponents of Prop. 8 turned in the necessary signatures to qualify for the ballot in April 2008. Passed by California voters in November 2008, Prop. 8 amended the state constitution to limit marriage to one man and one woman. It eliminated the right of same-sex couples to enter into legal marriages, although the roughly 18,000 same-sex marriages performed during a four-month period between mid-June and Election Day were protected as valid.

And if it seems like marriage equality has been in the news—and in the courts—for a long time, well, you ain’t seen nothin’ yet.

“It’s important to stress that this is just one step along a very long process,” Levine reminded.