Try as they might, lawyers from one anti-gay rights organization just can't get any love from judges in California.
After being barred from intervening in the federal challenge to Proposition 8, the Campaign for California Families tried their luck Wednesday with the 9th U.S. Circuit Court of Appeals. But a conservative panel sitting at Stanford Law School didn't appear any more likely to let them into the case.
Matthew Staver, whose advocacy group Liberty Counsel represents the campaign, repeated arguments previously made to Northern District of California Chief Judge Vaughn Walker: that the official Prop 8 forces weren't adequately litigating the case and had stipulated away far too many facts.
Ninth Circuit Judge Pamela Rymer had a hard time understanding how Staver's goals conflict with those already advanced by the Yes on 8 campaign, which Walker allowed to be the primary defendant in the case.
"How is your, your interest -- your particular interest -- affected?" she asked Staver.
If Prop 8 is upheld on some narrow ground, the stipulated facts still make it harder to prevent homosexuals from becoming a suspect class, Staver said. The Yes on 8 forces won't fight the idea that homosexuality is immutable, he said.
Judge M. Margaret McKeown pounced on this point, and began to read from one of the Yes on 8 filings. "'We will dispute plaintiffs' claim that homosexuality is immutable,'" McKeown intoned, whereupon Rymer started shaking her head.
Even so, Staver said, other stipulations would undercut the immutability fight.
Rymer, a George H.W. Bush appointee, and McKeown, a Clinton selection, were joined on the panel by N. Randy Smith, one of George W. Bush's picks. Under the circuit's procedures, these judges will probably have the right of first refusal when it comes time to decide the weightier Prop 8 issues once they leave Walker's court.
Panels typically will hold on to a case if the same substantive issue is involved, said Circuit Executive Cathy Catterson. "It is unlikely that a panel would keep the case if it was dealing with totally different issues," she said.
Staver's appeal put the official Yes on 8 campaign in a bit of an awkward position, since it has tried to position itself as a defender of traditional marriage -- but not hateful or insensitive. But for purposes of defending against Staver's appeal, it had to show how many facts it was ready to contest, some of which are deeply offensive to same-sex marriage advocates.
Howard Nielson Jr. of Cooper & Kirk said his side hadn't actually agreed to stipulations, only that they were open to a discussion. They may still argue, for instance, that sexual orientation is amorphous.
"We are simply not giving away the store on that," Nielson said.
Gibson, Dunn & Crutcher partner Matthew McGill, representing same-sex couples, agreed that Yes on 8 was litigating hard. McGill said that just last week, he had deposed one of their experts who claimed same-sex relationships are less healthy for raising children.
So far, McGill said, the only fact conceded by Yes on 8 is that homosexuality is not a "mental disease or defect."