Today, the U.S. Court of Appeals for the Ninth Circuit will hold a hearing on the appeal in Perry v. Schwarzenegger, in which the United States District Court for the Northern District of California ruled that Prop 8 is unconstitutional.
What will they be talking about?
They'll be discussing the standing of the defendants to pursue the appeal, and the concepts of due process and equal protection, particularly what those concepts mean in relation to a law that restricts marriage rights to opposite sex couples. No new witnesses or evidence will be presented, as usual in appellate hearings. Only the facts already on the record from the lower court can be cited, and the real question will be whether Judge Walker committed any legal errors in deciding that the law violates due process and equal protection.
What this argument comes down to in ordinary English is as follows: If none of the "real defendants," if you will, files an appeal, then there can be no appeal by mere intervenor parties. The Prop 8 crowd intervened in Perry saying that they had an interest in the case, but still they were not the actual defendants.
Regarding the substantive issues, Judge Walker said that he found Prop 8 in violation of the Due Process and Equal Protection Clauses of the US Constitution.
Here's a quick definition of these terms:
Due Process: the government may not deny anyone life, liberty or property without due process of the laws.
Equal Protection: the government may not deny to any person the equal protection of the laws.
Judge Walker held that the the right to marry for same-sex couples is a fundamental right, the same as for opposite-sex couples. That's revolutionary.
Domestic partnerships do not satisfy the rights of same-sex couples because they were created in order to deny same-sex couples the right to engage in the institution of "marriage," while approximating the benefits of marriage. Domestic partnership is a substitute and inferior institution.
He said the evidence showed that same-sex couples and opposite-sex couples are equal in fact, and should be equal in law. The only difference between them is an intangible one: moral disapproval by opponents, and that's not a legitimate reason for a law.