Opponents and proponents of gay marriage argue in federal court

December 7, 2010

As a gaggle of noisy protesters shouted through bullhorns and brandished signs outside, lawyers for the backers and opponents of the initiative to ban gay marriage made their case inside a federal appeals courthouse Monday. [CaliforniaWatch]

The 2 1/2-hour hearing before a three-judge panel at the 9th Circuit Court of Appeals aimed to address two issues: whether Proposition 8, enacted by 52 percent of voters in 2008, is constitutional and whether sponsors of the ballot measure – or a county clerk from Southern California – have a right to argue its merits in court.

Prop. 8 was struck down by a lower federal court in August. Typically the attorney general or the governor would defend the legality of such legislation, but both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown declined to do so. Prop. 8 sponsors and the deputy clerk from Imperial County stepped in to appeal the ruling themselves.

Arguing the constitutionality of Prop. 8 on behalf of its sponsors, attorney Charles Cooper said marriage must be defined as one man and one woman, because “society has a considerable interest” in sexual relationships that could produce children.

“Society needs the creation of new life for the next generation,” he said, adding that children born out of wedlock are often raised by single mothers who require “society to step in and assist that single parent in the raising of that child.”

Judge Stephen Reinhardt seemed skeptical. “That sounds like a good argument for prohibiting divorce,” he said, “but how does it relate to having two males and two females marry each other and raise children as they can in California?”

Judge N. Randy Smith also pressed Cooper on how Prop. 8 could protect marriage when same-sex couples in California already enjoy the same legal rights as married couples but cannot officially marry. “What you’re left with is a word – marriage,” Smith said.

Cooper said that word is the essence of the institution. “If you redefine the word, you change the institution,” he said.
For the Prop. 8 opponents, attorney Ted Olson argued that the initiative is inherently unconstitutional because it strips citizens of a right based on sexual orientation, California Watch reported.

“California has built a fence around its gay and lesbian citizens,” Olson said, “and it’s built a fence around the institution of marriage.”

Although Chief U.S. District Judge Vaughn Walker struck down the initiative earlier this year, saying it was a violation of the U.S. Constitution, the appellate panel appeared to be exploring whether a more narrow ruling could be made.

The judges questioned Olson about whether Prop. 8 was unique in that it did more than merely withhold marriage from gays, defining it as between a man and a woman – it stripped away a pre-existing right from a minority group.

For all the legal wrangling over constitutionality, the panel could dismiss the case altogether or send it to the U.S. Supreme Court based on the issue of whether the pro-Prop. 8 camp even has legal standing to appeal the earlier ruling, California Watch said.

Robert Tyler, attorney for Imperial County Deputy Clerk Isabel Vargas, argued to the skeptical panel that although his client is a local official, she performs state functions – as in civil marriages – and therefore has a right to appeal.
Attorney David Boies, arguing alongside Olson to uphold Walker’s ruling, said neither the Prop. 8 sponsors nor Vargas can legally appeal because they are not directly impacted by the ruling, which Boies said applies only to Alameda and Los Angeles counties.

Questioned about the narrow scope of the case, Boies said, “We do depend on the governor and attorney general” to enforce the ruling in other counties.

“Well, then you’re lucky the election came out the way it did,” Reinhardt said as the courtroom erupted in laughter.
Speaking to California Watch reporters after the hearing, Boies called the proceedings “a turning point” in history. “Looking forward 20, 30 years from now, people are going to wonder, ‘Why was this necessary?’” he said. “People will look back on this case the way we look back on Brown v. Board of Education and say, ‘Why did it take so long?’”

Asked to respond to Boies’ prediction, Austin Nimocks, legal counsel for the Alliance Defense Fund, which supports Prop. 8, said: “That’s the great thing about America. Everybody is free to disagree. The over seven million Californians who voted on this measure have a different opinion about that.”

The appellate court’s decision could come early next year. Regardless of the outcome, it is expected that the issue of marriage rights will ultimately be decided by the U.S. Supreme Court.


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6 Comments

  1. standup says:

    Do you John take Phil to be ………….Call it a bond, call it a union, call it whatever but don’t call it marriage. I think us married folk would prefer to stand alone in the name of the word marriage. Give the gays and lesbians their rights as couples and be done with this.

    (0) 8 Total Votes - 4 up - 4 down
    • JesseJames says:

      You don’t get to legally bind a word to one class of citizens and not another. Sorry.

      If it’s that important to you, then know that “marriage” means between a man and a woman to you, and it means something entirely different legally. Problem solved.

      Now we can move on. As equals.

      (3) 7 Total Votes - 5 up - 2 down
  2. danika says:

    I pretty much don’t care about the sexual habits of others. Happiness is far to elusive to worry about obtaining it thru heterosexual relationships. Let gays marry; they can then worry about divorce like everyone else. Just sayin…

    (-1) 11 Total Votes - 5 up - 6 down
  3. Paul Anthony says:

    Gotta be careful about absolutes, Cindy. It is absolutely NOT TRUE that marriage has “always” been between a man and a woman. It was not really an “institution” for that much of humankind’s existence. When it became a “law” it was to make clear whose property that “wife” was. She was chattel. I’m very surprised that you do not know this.

    Please don’t refer to gays as “they” this is not an us and them, this is a we.

    Gays want the word and want to be treated as the equals they are.

    Equal equals equal.

    (-4) 12 Total Votes - 4 up - 8 down
  4. Cindy says:

    In my opinion, it is about “forced acceptance” of their lifestyles. They say that they don’t currently have all the legal rights as a married couple and that is what they should be fighting for in my opinion, the same rights. But if you check with them, they will tell you that they want the “word”. They say that they want a word to express their commitments to each other. The word marriage has “ALWAYS” meant between a man and a woman. I think they need to get their own word, they are not like any mommy and daddy that are married and never will be. It’s called having some respect for those that are different, in this case it’s time to have some respect for the straights.

    (3) 17 Total Votes - 10 up - 7 down
  5. Paperboys says:

    “Society needs the creation of new life for the next generation,” he said, adding that children born out of wedlock are often raised by single mothers who require “society to step in and assist that single parent in the raising of that child.”
    Is that the best this lawyer can come up with? We need to keep marriage between one man and one woman so they can reproduce? That’s got to be the lamest argument I’ve ever heard.
    I voted against Prop 8 because I felt it was inherently wrong and discriminatory. I have no dog in this hunt — not married nor am I gay — I just felt that for once in this state, I’d like to see a law passed that INCREASES people’s freedoms and rights.
    Too many laws have been passed that do the opposite of that.
    We used to be the land of the free but now we’re the land of 3 strikes and you’re out, zero tolerance, the helmet law, and “click-it or ticket.”
    I think the judge was right when he said “What you’re left with is a word – marriage.”
    An institution? Then why do we have “no fault” divorce?
    If two gay people want to get hitched I truly do not care whatsoever. It’s none of my business.
    But the gays need to remember that with “marriage” comes all the legal entanglements as well. No more getting in a row with your girlfriend and moving your stuff out to stay with another girlfriend. You can still move out, but now you’ll have to go through a divorce.
    Frankly, I’ve always thought gays had the best deal, love and commitment without the legal entanglements associated with being married. Why would they want to mess that up?
    Or is this all about forced acceptance of their lifestyles?
    I think we’ve expended entirely too much time, money and effort on this issue already. Throw the damn thing out already and move on.

    (6) 10 Total Votes - 8 up - 2 down

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