Ed Whelan has posted some helpful observations on the oral argument in the Prop 8 challenge at Bench Memos. Though hardly a connoisseur, I have watched a lot of these arguments and thought I might add my own reaction.
I thought Ted Olson was very polished — his reputation for advocacy was certainly not hurt by his performance yesterday. I was surprised at the paucity of legal argumentation, though. His presentation was much more policy-oriented, in keeping with the new persona Ed has described. There also seemed to be more ad hominem than I would have expected, with a lot of references to opposing counsel that struck me as entirely unnecessary, though consistent with the theme of the case (the voters are bigots, the proponents are irrational, etc.), as embraced by both the plaintiffs’ attorneys and Judge Walker.
One thing I haven’t seen mentioned much in the commentary on the oral argument (much of it blinkered by ideology) is the really superb job the attorney for the defense, Charles Cooper, did. Brian Brown at the National Organization for Marriage noticed. (Full disclosure: I co-authored an amicus brief for NOM in the case.) Cooper’s straightforward case for marriage was refreshing. His argument got right to the heart of the case — the reasonableness of treating the unique sexual relationship of a man and a woman different from other kinds of relationships.
He was particularly effective in responding to some of the novel legal theories floated by the judges. In his rebuttal argument, Cooper’s command of the precedent helped deflate the idea that the U.S. Supreme Court’s decision in Romer v. Evans prohibited the people of California from correcting the California Supreme Court’s reading of the state constitution regarding marriage. He was able to remind the court of a passage in that case disavowing the idea that merely changing an existing legal arrangement was enough to make a law invalid.
In regards to standing, I thought Judge Randy Smith made clear the essential problem with the plaintiffs’ argument. The governor and attorney general — who have no constitutional role in approving an amendment to the state constitution — would be given, by their inaction, the power to negate the amendment.