A panel of three federal judges from the Ninth Circuit Court of Appeals will hear arguments on two issues regarding August’s ruling in favor of gay-marriage supporters, which overturned California’s Proposition 8. First, the judges will face the question of whether groups like the Alliance Defense Fund — which has been funding the side supporting Prop 8 — have the standing to continue to pursue the case in court. (The lawsuit against Prop 8 was filed by two California gay people against Governor Arnold Schwarzenegger and State Attorney General Jerry Brown. Neither Schwarzenegger nor Brown, who will replace him in Sacramento next year, have opted to defend themselves or the measure.) The ADF will have to prove that they are directly affected in order to take up the defense of Prop 8. As lawyer David Boies put it, “It’s not enough that you have a policy disagreement.”
Second, the judges will hear arguments over the legality of Proposition 8 in general. Boies and Ted Olson, the top lawyers on the pro-gay-marriage side, have argued that voters have no legitimate state interest in defining marriage as solely between a man and a woman. In his August ruling, Judge Vaughn Walker agreed.
Once the case clears this panel of judges, it could go before the wider Ninth Circuit — and probably will, as both sides have already begun readying appeals. Meanwhile, at first glance, the trio seems tilted in the gay-marriage advocates’ favor: A randomly selected group, it includes liberal Judge Stephen Reinhardt, the more moderate Democrat Michael Hawkins, and conservative Republican N. Randy Smith. One group supporting Prop 8 requested that Reinhardt recuse himself from the hearing, since his wife is the head of the Southern California ACLU, which is on the record supporting gay marriage. He refused to step down from the case.