The Prop 8 Oral Arguments: What Happened Yesterday?

Lyle Denniston provides highlights:

If there was a surprise, it was that the one judge on the three-judge panel known as a conservative, Circuit Judge N. Randy Smith, found a possibly fatal flaw in logic in support of the ban.  What is rational, Judge Smith asked, about a state giving gay and lesbian couples complete equality in the legal rights and benefits that married couples have, including the right to raise children, but then to deny them marriage itself.  The state’s voters, he said, had just opted to omit a single word, “marriage,”  and how is that rational?  He seemed skeptical of the response by Charles Cooper, Proposition 8 lawyer, that “it is a word that is essentially the institution; you cannot separate the two.”

But, however Judge Smith might vote on the constitutionality of the ban, if the panel gets to that, it seemed clear that his two colleagues, Circuit Judges Stephen R. Reinhardt and Michael Daly Hawkins would nullify the ban, provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.  At most, they seemed inclined only to rule that California had first allowed a right to same-sex marriage, then took it away by singling out gays and lesbians for the loss of an existing right a targeted exclusion that could only have resulted from bias.