GOP leaders are claiming victory in the Long Island race where it appear Ralph Martins ousted the pro-SSM incumbetn Craig Johnson, given them control of the Senate chamber.  Will this pose end to dreams of SSM in New York? Good news for today, but keep your power dry.

Bill Duncan over at National Review Online agrees Chuck Cooper was great:

"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."

Even liberal papers are reading the oral arguments today as a sign that Judge Reinhardt is looking for some kind of "narrow ruling" that might not be overturned by the Supreme Court.  See "Appeals Court Hints at Narrow Ruling  " www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/12/06/BATJ1GMLER.DTL&feed=rss.news

Temperamentally, it's hard to believe a judge this activist-minded is going to sit back on the standing issue and refuse to be the guy who tries to make history by writing the opinion validating gay marriage.

Even Judge Reinhardt expressed considerable skepticism on the "lack of standing" arguments-- that the Attorney General and Governor had the sole standing to protect Prop 8: "The Ninth Circuit panel, which devoted the first hour of Monday's hearing to that issue, suggested that it would be unfair to let state officials effectively veto a ballot measure by letting it die in court.

"That does not seem to be consistent with the initiative system," Reinhardt said." (He suggested referring it to the California Supreme Court, effectively giving the California courts that same veto!)

But to really make history requires--not being overturned, as he so often is, by the Supreme Court.  Reinhardt appears to be toying with the idea of saying that you cannot rescind a right to gay marriage, if a court first grants it.  He is using Romer v. Evans (an opinion written by Justice Kennedy striking down a statewide ban on orientation anti-discrimination laws at the city and county level) as the precedent for saying: the majority cannot take away any rights of a minority by ballot initiative.

This is really conceptually pretty radical: it amounts to saying the voters have no right to amend their state constitution if they disagree with the supreme court's interpretation.   Romer was decided by Kennedy on the grounds it was about general access to the legislative process, not a specific right like marriage.

Lawyers routinely warn its hard to tell from oral arguments what judges do.  But none of the judges  appeared to accept the main Olson and Boies argument: Judge Walker had a trial and scientifically proved all the facts!

And Judge Reinhardt appeared to be desperately seeking a pathway to Justice Kennedy's vote.