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.)

FULL COVERAGE:

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

[Paleta Fresca]

Do state's rights take precedent over the Constitution of the United States? I think we have a problem, California.

[WorkinStiff]

Civil marriage is essentially a contract, in what other civil contract do we not allow two parties participate based on the sex of the two parties?

If you and your church don't wan't to sanction gay marriage fine, but as far as the state is concerned it is a civil contract.

Unless we mandate children be produced as a result of heterosexual marriage, then there isn't any different between same sex couples and heterosexual couples.

"When a relationship between a man and a woman becomes a sexual one, society has a vital interest," Cooper said. So society has a vital interest in last nights hookups?

It is easy to see that this all comes down to intolerance based on religion.

We are not majority rule, we are ruled by the constitution, which is why we have a co-equal branch of government called the courts to prevent tyranny of the majority and protect everyones right to equal protection.

I cannot stand having discrimination written into my constitution and hope Prop 8 is over turned.

[Ironman Carmichael]

Wouldn't it be a step forward if heterosexuals actually lived up to the moral standards they spout so glibly?

[sean n]

A lot of posters are confusing some of the issues and history of this litigation. Under the Ca constitution, distinguishing between gay and straight marriage was held unconstitutional - which went against the rulings of most other state supreme courts. The "people" voted in favor of 8 as a constitutional amendment and the Ca SC upheld that vote under the Ca Constitution. Now there is challenge under the US Constitution. The 9th Cir will uphold J. Walker's ruling and it will go to the US SC. In all likelihood, the court will rule 5-4 but it's less clear who will win. J. Kennedy will be the deciding vote. I think they will uphold 8 under the US Constitution. However, in 10-15 years, gay marriage will be legalized in most states and in 40 years people agree that the US SC's ruling was poor. It's just a matter of time before gay marriage will be legalized.

[John]

How does prop 8 differentiate over prop 83? California's voters also approved prop 83, in which segregates certain individuals from society. Unconstitutional?

[Logician]

So hep me understand the constitutional argument. Why is the state defining "marriage", one way or another, unconstitutional because at some point a definition will need to be made, right? Why wouldn't 3 folk being married be ok also? Don't understand the issue as it seems like any logic ends up in a loop of logic. Will gays support plural married also? If not, won't they be discriminating against people?

[Anne]

When "the will of the people" goes against the letter and the spirit of the Constitution, or when "the will of the people" attempts to enforce religious belief, then "the will of the people" must be overturned by judges who are obligated under law to protect the rights of ALL people.

It's pretty obvious that some people here didn't get past 4th grade mentality: "Majority Rules." If you had made it to 8th or even 11th grade, which where American history and government are taught, then perhaps you would realize that we are not governed by "the majority," but by LAW.

[bruyere]

Everyone is addressing joeinc, and I 100% all of the comments made. However, LAnative slipped in a comment that has seemingly gone unread.

LAnative, your question is why can't gay people just come up with something that has another name and accept that as being equal.

Would you support a law that says that brown-eyed people who graduate from medical schools will be given the title of Dr., but all others will be given the name of Medical School Graduate? It's the same thing. Get over it. Would the MSGs get the same treatment, the same clientele, the same pay? I mean, it's just a term, so why would that affect anything?

The reason that just doling out another name is inadequate at best, other than the fact that it's just a theoretical slap in the face, is that it legally complicates all facets of their union. Federal, state and local laws, as well as tons of other "rules" at employers, etc., were written with the terminology of "marriage." If your union is not legally called "marriage," then laws do/do not apply to you based upon that "just a term."

You say that it's timely and costly. Well, how timely and costly would it be for each gay (insert term) to fight for equality in each and every situation where only the term "marriage" is used and/or deemed legal? It's a technical nightmare.

On a human side, it's demeaning. It's creating classism, whether you want to admit it or not. You can say that it's just a term, and it doesn't affect your opinion of gays at all, and shouldn't affect anyone elses, but it does.

Would you say to Rosa Parks, "What’s wrong with sitting at the back of the bus? It’s all going to the same place anyway."

I don't think so. The only way to truly solve this issue, end the costs and time spent on arguing about it, and have it become a truly equal union is to call it the same thing, the thing that it is, marriage.

[Get Planted]

The judge asked the plaintiff if he would be personally harmed in any way if gays were able to be married. The answer of course was no.

Prop 8 proponents have absolutely no case. They are spewing the exact crap that was spewed during debates about allowing inter-racial marriage.

[92804John]

I can't help but think that everyone in this debate on the role of a judge to overturn a vote by the people would have opposite arguements if Judge Walker would have ruled the other way. It seems to me that the question is if he ruled based on established law or just his interpretation of it. This is only the first step in a long process, and it is way too early to get this upset by the events of today. This debate isn't going to go away until resolved by the entire US Supreme court. From that point of view, I think it is important that this case go forward so we can get a final ruling on it. Some will be pleased with the result, others will be angered. That's life, deal with it.

[Markus Lastur]

To those of you using the Bible as a weapon against homosexuality, you are wrong. Homosexuality is not a sin. The Bible is constantly being taken out of context to support anti-gay views. Scholars who have studied the Bible in context of the times and in relation to other passages have shown those passages (Leviticus, Corinthians, Romans, etc) have nothing to do with homosexuality. These passages often cherry-picked while ignoring the rest of the Bible. The sins theses passages are referring to are idolatry, Greek temple sex worship, prostitution, pederasty with teen boys, and rape, not homosexuality or two loving consenting adults.

http://www.soulfoodministry.org/docs/English/NotASin.htm
http://www.jesus21.com/content/sex/bible_homosexuality_print.html
http://www.christchapel.com/reclaiming.html
http://www.stjohnsmcc.org/new/BibleAbuse/BiblicalReferences.php
http://www.gaychristian101.com/

[YJ Draiman for council]

We need honest government with integrity.
“Good leaders create a vision, articulate the vision, passionately own the vision, and relentlessly drive it to completion”

Public confidence in the integrity of the Government is indispensable to faith in democracy; and when we lose faith in the system, we have lost faith in everything we fight and spend for.

[jjg12]

This has gone too far and morphed into something it's not. The fact is the judges already concluded that gays already have the same rights in the state, so "why can't they marry". The answer is simple, society has demanded that the title "marriage" been an identifying distinction of opposite sex couples that have entered into binding contract with one another (non biblical). This is the same concept that is used to distinguish one gender from another (public restrooms, sports teams/leagues). Therefore, the constitution is not being infringed becasuse society wants to declare a distinction.

[psguy]

I want to know if marriage, which is a legal contract, under the Prop 8 defense will cause all birth control to become illegal for all heterosexuals that marry.

[halfmoon]

When are we going to have the real discussion about the meaning of marriage? It's about property rights, ownership, who gets what, etc.

[Sasha]

lol @joecinoc

That "majority" was what, 51-52%? Do the other 48-49% have no voice at all then?

[SonnyRey]

Judge N. Randy Smith uncovered that the appeal is about a word, one that is esentially an institution, namely marriage. Demanding use of the word marriage vice union will not make abnormal people normal or make their behavior acceptable to all US citizens no matter how many activists try to drive the bus. The argument using the 2nd amendment equal-rights provision is false because all law-biding U.S. Citizens do have the same rights regarding marriage as aptly pointed out by poster Ramon Ortiz and others.

Society's expectations should and must be a key consideration in this issue as it has been in other Supreme Court decsions. Clearly, society’s expectation of married couples in the USA since its inception for well more than 200 years was, in essence, to perpetuate the human race, i.e., produce offspring. Granted that it is uncertain whether any normally married couple, including mixed race marriages, can produce offspring but it is absolutely certain that any lesbian, gay, bisexual, and transgender (LGBT) couple cannot.

Two different judges can and do have totally opposite interpretations of a law. That is why some are called activists. After all these lower courts fnish playing with the issue, it will go to the US Supreme Court. If in the eyes of the citzenry they get it wrong, then it is up to the Congress to effect the will of its citizen. The issue must be resolved by the will of the people as a whole

The Constitution, including all the Amendments, result from majority or super-majority votes! To suggest that the will of the voters should be discounted in every case is ludicrist. As Abraham Lincoln declared about our government, “…government of the people, by the people, for the people, shall not perish from the earth.”

I am ready and willing to cast my one vote.