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Prop. 8 analysis: Judges took different approaches on specific issues

December 6, 2010 |  1:52 pm

A federal appeals court on Monday heard arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Courtney G. Joslin, acting professor of law at the UC Davis School of Law, says judges on the three-member panel of  9th Circuit Court of Appeals appeared to take different approaches on some issues. Here’s the analysis she provided The Times:

At different points in the hearing, Judge N. Randy Smith suggested that he thought that the particular circumstances of the case make the proponents' task of defending Prop. 8 a particularly difficult one. Specifically, Judge Smith pointed out that even after Prop. 8 was approved by the voters, California law still extended to lesbian and gay couples all of the state-conferred rights and obligations of marriage, including all of the parentage and child-related protections. That being the case, he suggested, it is difficult to see how Prop. 8 rationally furthers any interests related to the protection and well-being of children. Later in the hearing, Judge Smith suggested that same-sex marriage bans in states that, unlike the state of California, do not encourage and facilitate same-sex parent families might be more likely to survive constitutional review.

Judge Michael Hawkins went down a different path. Judge Hawkins pressed Charles Cooper, counsel for the Prop. 8 proponents, on the applicability of Romer vs. Evans, a U.S. Supreme Court opinion striking down a Colorado voter initiative provision under rational basis review. The initiative at issue in Romer prevented the state or any governmental entity from prohibiting discrimination against lesbian, gay or bisexual people. The Colorado initiative “withdr[e]w] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forb[ade] reinstatement of these laws and policies.” This, the court said, was impermissible. Amendment 2, the court explained, “impos[ed] a broad and undifferentiated disability on a single named group” and “its sheer breadth [wa]s so discontinuous with the reasons offered for it that the amendment seem[ed] inexplicable by anything but animus towards the class that it affect[ed],” and thus failed rational basis review. Why, Hawkins asked, aren’t the merits of this case controlled by Romer?


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