Statement by NCLR Executive Director Kate Kendell

(San Francisco, CA, December 6, 2010)—Today, the Ninth Circuit Court of Appeals heard oral argument in Perry v. Schwarzenegger, the federal court challenge to Proposition 8, the 2008 ballot measure that stripped the freedom to marry from same-sex couples in California. U.S. District Court Judge Vaughn Walker ruled in August that the measure violated the U.S. Constitution, and Proposition 8’s proponents appealed that ruling to the Ninth Circuit.

The first hour of the hearing was dedicated to the question of “standing,” or whether Prop 8 proponents have a legal right to appeal the case. The plaintiffs, represented by David Boies, argued that the proponents do not have standing because California law does not permit private parties to represent the state in court when the attorney general and governor have decided not to appeal a court decision and because the proponents of Prop 8 are not harmed in any way by permitting same-sex couples to marry.

In the second hour, the attorneys addressed the constitutionality of Prop 8. Representing the plaintiffs, former U.S. Solicitor General Theodore Olson argued that the measure is unconstitutional under both the equal protection clause and the due process clause, as a denial of the fundamental right to marry, and that Prop 8 lacks any rational basis.

There is no set timeline for the Ninth Circuit panel to issue a decision in the appeal, but since the case was set for a fast track briefing and argument schedule, it seems likely that the panel will issue a decision more quickly than usual, possibly within a few months.

A statement by NCLR’s Executive Director Kate Kendell:

“Today, we were witnesses to history. The arguments for striking down Prop 8 were powerful and persuasive, but the true animating feature of the fight to invalidate Prop 8 are the lives of the couples, their families, their children, and all who support a nation where the promise of our constitution applies to all. This morning, while many of us sat riveted to the argument over Prop 8, LGBTQ headed-households all over the state went about their business, taking kids to school or dentist appointments, planning what to cook for dinner, rushing to catch the bus, or get to work. The future and fortunes of many of these very real families hang in the balance over the outcome of this morning’s hearing. We remain hopeful that Walker’s ruling will be upheld and Prop 8 invalidated by the Ninth Circuit.”