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Prop. 8: Appeals-court hearing adjourns; debate centered on whether gay-marriage ban violated Constitution and who had standing to argue case


In a spirited discussion that spanned over two hours before adjourning, backers and opponents of California's ban on gay marriage argued Monday over whether Prop. 8 violated the Constitution and whether gay-marriage foes had legal standing to make their case.

The hearing before the 9th Circuit Court of Appeals in San Francisco came after a federal judge ruled Prop. 8 -- the 2008 ballot measure that effectively banned same-sex marriage -- was unconstitutional.

The  judges dug into the issue of whether the Constitution permits the state to make distinctions between same-sex and opposite-sex marriages.

Charles Cooper, a lawyer who argued in favor of Prop. 8, said  marriage exists for society to recognize relationships between men and women that can lead to children.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said.

Judge Stephen Reinhart, one of a three-member panel of the U.S. 9th Circuit Court of Appeals hearing the case, appeared unconvinced.

"That sounds like a good argument for prohibiting divorce," he said, dryly. "But how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?"

Judge N. Randy Smith raised another issue: Under California law, same-sex couples have all the rights of marriage except the word "marriage." Given that, he asked, how does Proposition 8 protect marriage?

Answered Cooper: "You are left with a word, but a word that is essentially the institution."

The other major question was whether the anti-gay-marriage side had legal standing to appeal. If not,  then Judge Vaughn Walker's ruling would stand. 

The judges grilled anti-Prop. 8 attorney David Boies on the question of who has standing to appeal Walker's lower-court decision tossing the law.

Both Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown (now the governor-elect) declined to appeal Walker's decision.

That prompted the judges to question who did have the right to appeal, an important point, they noted, given that a majority of California's electorate voted in 2008 for Prop. 8.

"My problem is, in fact, the governor's and the attorney general's actions have essentially nullified the considerable efforts that were made on behalf of the initiative," said Smith, the most conservative judge on the panel.

He and other judges noted that neither Schwarzenegger nor Brown had the power to veto the proposition when voters approved it. But by declining to appeal the legal judgment, were they not effectively vetoing it?

Reinhardt raised the possibility of asking the California Supreme Court to answer this question of state law. (A federal court of appeals can do this by "certifying" the question to the California Supreme Court.)


Does Prop. 8 violate equal-protections clause?

Is gay-marriage ban a violation of the right to marry or a denial of equal protection for gays?

Lawyer argues that marriage exists in society's interest so that men and women can procreate

--Jessica Garrison

Comments () | Archives (42)

Ted Olson and David Boies are brilliant...there is no 'other' side to this argument anymore. Marriage is good for everyone not just straight people.

In the section where Charles Cooper stated, "When a relationship between a man and a woman becomes a sexual one, society has a vital interest," does this further mean that once gay marriage is banned that interested parties will go after married male/female couples without children and nullify their legal standing?

Where and when does all this stop?

To me, it goes back to, does Vaughn Walker, one man, one gay man, have the right to reverse the majority vote of the entire state of California? I say no. What does our vote mean if one person can overturn it?

joecinoc: I partially agree with you; however, per the US Constitution, the majority is not allowed to dictate the rights of the minority. It is Justice Walker's duty to enforce the constitution, and in no situation should minority rights be up for a vote by the majority.

To joeinoc,

One person does not have "the right to reverse the majority vote of the entire state of California." Her does however have the authority (as a judge) to interpret and uphold the California Constitution. When any law, even a voter-approved law violates the Constitution, which is the highest law of our land, then the judge does not just have the right but the duty and obligation to overturn it.

You may disagree with that, but that is the same constitution and checks and balances system that protects you. If voters passed an imitative banning Christianity from being practiced, a judge would likewise be obligated to overturn it. Rather than just spout off on "judicial activism," why don't you read the evidence brought forward during the case and read the judge's opinion and tell us where you think he we wrong. Have you even read the opinion? What part do you disagree with?

joecinoc at 2:06PM seems unaware that people's rights are not allowed to be voted on.

Small fact, but kinda important, doncha think?

joecinoc - the reason prop 8 is in court is because the vote was possibly unconstitutional. The question now is whether or not the majority can take away civil rights from a minority group by voting.

Ok, how about this, Why don't we pass a law that says you can't eat solid foods. You can still get all your nutrition from liquids which is kind of like eating but not quite the same.

Then let’s pass a law that says you are not allowed to use your left hand because being left handed is a different minority, 10% of the population.

Both those notions seem quite out there. But I see no difference than Prop 8. They all don't make sense.

Let’s not forget that no too long a black man couldn't marry a white woman. The idea of marriage is not set in stone. The faster that people realize this the faster this nonsense will stop.

And when you say it is God's Union, which god? Only your god? Well then by that logic, what is stopping you from trying to pass a measure that says that any marriage that was conducted outside the (Insert Religious Faith here) should be revoked?

In all this bickering, the proponents have asked one question, use the law to prove it. Not your religion, not your moral outrage. Just the Law. So far they haven't been able to and they won't. This is why we have a separation of church and state. Freedom of religion doesn't just mean to study your religion; it also means freedom from all religions.

Now let’s play nice, get along, stay out of everyone else’s bed and move on with our lives.

Written by a straight man, unwed, in a relationship with a child. Get over it.

@joecinoc If the majority of individuals in the United States voted to reinstate slavery would it be constitutional for the country to do so?

Why does the word marriage mean so much time and money to gay people everywhere. Just come up with another name for it and everything is the same as a regular marriage,(male to female, as defined in dictionary and Bible(eventhough we seperate church and state)) you also get your choice of what its called.

@ joecinoc

It means that "the will of the people" can't do anything that violates the Constitution without amending it.

There's tons and tons of historical precedent on this... time to crack a basic history, politics, or legal textbook? Clearly you have no idea what the role of the courts are in the American legal system...

I'm sure you would have been satisfied if one straight man had ruled to ban marriage equality.

If the courts rule against gays, what will stop the majority of Californians from putting proposition after proposition on the ballot to take away their rights. What is next. Is this the kind of country that we want?

Marriage is a sacrament that God has given to man and woman to procreate and protect the bonds of all members of the family. The liberals in this country cry for separation of church and state, yet when it is in their interest, they would like to merge the two. The State has no right to make a law regarding religious dogma, and this is in the best interest of liberals and conservatives, and religious and non-religious. Would a priest or pastor be imprisoned or face fines for refusing to marry a gay couple? This is yet another step further in destroying the fabric of our society, the family. I am confident that my fellow Catholics and Christians would agree that we love everyone, for we are all sinners and imperfect, therefore it would be unjust for us to pass judgment on one group of people. We only ask that the homosexual community and its supporters give us the same respect by ending their campaign to undermine our beliefs and religious institutions.
God love you.

if something is unconstitutional regardless of how large the majority, the judge has to rule against. I don't understand how you could not get that

@ joecinoc :

What it means is a Majority does not have the right to take rights away from a Minority. Educate yourself on the law.

@joecinoc the vote you're talking about was more than likely unconstitutional and should have never been approved as a ballot initiative to begin with. But since only the courts can decide what is and isn't legal, it was approved with the expectation that if passed it would be challenged, which it is. Majority doesn't rule in a Democratic-Republic. There are laws set up specifically to stop things like Proposition 8 in which the minority is subjected to the bigotry of the masses. That is what this legal challenge is all about.

To answer your other question, yes one vote can cancel out another. That is how the system works, you vote for John McCain and it cancels out my Barak Obama vote. The winner is decided by who has a net total gain in votes.

Isn't this a slippery slope though, to basically say that states don't have the right to define "marriage"? My point is that the argument for gay marriage also supports an argument for plural marriage, ie the state has no right to tell me whom I love. And plural marriage is often supported by a belief that is religious in nature, therefore it is an even more robust argument because of religious protections defined in our constitution. And any combination or permutation of relationships could then be logically argued (plural straight marriage, plural gay marriage, plural marriage with a straight and gay partner or any number thereof, etc). BTW: is the income tax benefit of marriage even constitutional? All this leads back to the overarching logic for the Prop: folk believe they have the right to make this definition, not courts. It seems that at some point, that right will also be affirmed. Will be interesting to see how this plays out.

joecinoc says: "To me, it goes back to, does Vaughn Walker, one man, one gay man, have the right to reverse the majority vote of the entire state of California? I say no. What does our vote mean if one person can overturn it?"

To this, I say, majority, schmajority. If the majority voted that murder was going to be legal, wouldn't you want one person to save everyone and overturn it, because it will hurt some people? Well, Prop 8 was designed to hurt people--taxpaying people--and shut them out, denying them the rights that straight couples enjoy. It does not hurt straight couples to allow gay couples to marry. Everyone should have the same rights regardless of sexual orientation.

To joecinoc: Your vote only counts to the extent that what you are voting on is constitutional. Prop. 8 was not, and therefore, the votes cast in its favor may as well be null and void. That's the basis of our Democratic *Republic*, and that pesky Constitution, that certain rights are inalienable and that no majority can ever vote to take them away. Marriage happens to fall into that category, hence why Prop. 8 was, is, and will always remain unconstitutional.

A majority of Californians just elected Governor a man who vowed not to defend Prop 8 in court. Apparently keeping same-sex couples from marrying wasn't that important after all.

The people have spoken!

@joecinoc: Yes, a judge does have the right to overrule the electorate, and that is a feature of our government that ensures its ongoing stability and success. The whims of voters, in our society, does not get priority over our fundamental principles of law. Your vote means exactly what it meant before all of this, because it changes nothing. Before the striking of Prop 8, your vote could still not override the fundamental principles of American and Californian law. That's how America works, and the limitations built into the system are a major reason we have as successful a democratic society as we do.

If California voters all vote to exile people named "Joe" is that just? Majority injustice is not the intent of majority rule.

Why vote?

@ joeinoc,

In 1966, the CA Supreme Court overturned voter-approved Prop 14 which allowed racial discrimination in real estate transactions. So no, the will of the people is not the last word.

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