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Prop. 8 analysis: Arguments before court go well beyond gay marriage, Pepperdine professor says

December 6, 2010 | 10:18 am

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

Barry P. McDonald, a professor at the Pepperdine School of Law, says the issues being made in court go well beyond the questions of marriage. Here's an analysis he provided to The Times: 

Both parties on this appeal seem to be arguing about much broader issues than this case presents.  As the California Supreme Court framed the issue in its decision on the constitutionality of Prop. 8 under the state Constitution, it is whether withholding the official name or designation of "marriage" to same-sex couples is constitutional when state law has given those couples all the rights and obligations of marriage (including parental rights) under its domestic partnership laws.  That is a much different question than whether denying the right to marry altogether is constitutional.

It presents the narrower issue of whether there is a legitimate basis for withholding the name "marriage" when all other rights and obligations have been granted.  As to this question, at least two answers might be offered.  One answer might be that it is clearly irrational and relegates same-sex couples to second-class status.  Another answer might be that the people of California have a right to experiment in this area and that it is not an "all or nothing" proposition (no pun intended).  In other words, the people want to give same-sex couples all the rights and obligations of marriage but also want to see what effect that will have on society and children raised in same-sex households before they "finalize" this arrangement by making absolutely no distinctions between traditional and same-sex marriage.

So why are the parties not focusing on the real issues in this case?  One can only speculate, but perhaps the Prop. 8 sponsors are concerned about how the court might decide the correct questions, and maybe the Prop. 8 opponents want a broader national statement than this case really presents.  But even Judge Walker studiously avoided framing the question presented as narrowly as the California Supreme Court did, and maybe that is why the parties are off and running on much broader questions about same-sex marriage.  But the risk here is that if the en banc 9th Circuit and then the U.S. Supreme Court eventually hear this appeal, they may very well choose to frame the question in its proper narrow form to avoid deciding more constitutional issues than they have to.  And then the parties will have missed their chance to develop their arguments along their correct lines.


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