Appeals court hears pros, cons of gay marriage for California

The fight over California’s same-sex marriage ban unfolded Monday before television audiences as attorneys began arguing the validity of Proposition 8 before a federal appeals court in proceedings broadcast live and watched by those anxious about the outcome and possible national implications of the case.

C-SPAN piped the nearly three-hour hearing into law schools, courthouses, community centers and elsewhere across the country, giving the public outside San Francisco’s 9th Circuit headquarters its first direct look at the debate raging in the landmark challenge that could have an impact on gay marriage bans in other states.

Matt Walker, 60, of Los Angeles watched the hearing with about 20 other people at the Los Angeles Gay and Lesbian Center in West Hollywood, saying the lives of many of his friends would be affected by the final decision. He found the hearing fascinating.

“Nobody from either side was getting a pass. The judges asked very probing questions,” he said.

Only a few people were gathered at the San Francisco Lesbian, Gay Bisexual and Transgender Community Center to watch the hearing that was broadcast at multiple locations in the city.

“I feel like it’s our civil rights issue of today,” said Jubilee Menzies, a 33-year-old who recently passed the state bar exam.

Proponents of traditional marriage brought the case to the 9th Circuit Court of Appeals after U.S. District Court Judge Vaughn Walker found in August that Proposition 8 — a voter-passed initiative banning gay marriage — violated the Equal Protection Clause of the Constitution.

The 9th Circuit is known as the most liberal of the federal appeals courts, and sitting on the three-judge panel hearing the case was Judge Stephen Reinhardt, viewed as one of the court’s most liberal jurists.

Backers of traditional marriage fought to have him removed from the case, arguing that he could not rule objectively because his wife, Ramona Ripston, works for the American Civil Liberties Union of Southern California and had reportedly advised anti-Proposition 8 lawyers early in the legal process.

During the hearing, Judge Reinhardt sparred with attorney Charles Cooper, representing Proposition 8, on whether the Constitution recognizes distinctions between traditional and same-sex marriage.

Mr. Cooper argued that the state can distinguish between the two relationships because heterosexual relationships produce children, and the state “has a vital interest” in protecting their well-being.

“Society has no particular interest in a platonic relationship between a man and a woman no matter how close it might be, or emotional relationships between other people as well, but when the relationship becomes a sexual one, society has a considerable interest in that,” said Mr. Cooper, who was retained by Protectmarriage.com, the group that placed Proposition 8 on the ballot.

Judge Reinhardt called the rationale “a good reason for prohibiting divorce.”

“But how does it relate to having two males and two females marry each other and raise children as they have in California?” said Judge Reinhardt, who was named to the court by President Jimmy Carter.

Judge Michael Hawkins, a President Bill Clinton appointee, asked whether the people of California could also vote to reinstitute school segregation. Mr. Cooper countered that the Proposition 8 case “is nothing like” earlier restrictions in some states on mixed-raced marriage.

“[T]here is simply no rational basis whatsoever on any purpose of marriage one could conceive to denied mixed-raced couples the right to marry,” Mr. Cooper said. “The central point we want to advance is what [are] the distinguishing characteristics of opposite-sex couples.”

Arguments about the differences between heterosexual and homosexual couples cut to the heart of the same-sex marriage debate, but the Proposition 8 case may be decided instead on a technicality, namely the question of legal standing.

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend Proposition 8 in court, a void that was filled by attorneys retained by Protectmarriage.com. Attorneys David Boies and Theodore Olson, who represent the anti-Proposition 8 side, argued that the initiative’s campaign arm lacks the standing to file a federal appeal.

Judge Randy Smith asked Mr. Cooper why he failed to take Mr. Brown to court in an effort to compel him to defend Proposition 8.

“Wouldn’t that have been an appropriate way for you to have made sure of your ability to seek standing here?” said Judge Smith, appointed to the bench by President George W. Bush.

At the same time, he quizzed Mr. Boies on whether the governor’s refusal to defend Proposition 8 amounted to a de facto veto of the initiative process. Proposition 8 was approved by a margin of 52 percent to 48 percent on the November 2008 state ballot.

“What we really have here then is an attorney general and governor with no ability to nullify acts of the people, and then by not appealing, they in fact do it,” said Judge Smith. “Where the people are allowed to pass a measure and if the state doesn’t defend it, it’s just tossing in the towel.”

Mr. Boies countered by arguing that the Supreme Court “has many times … said that the fact that there’s no one to defend does not give standing.” Even so, Judge Reinhardt raised the possibility of consulting the California Supreme Court on the matter of state law before the federal appellate court issues a ruling.

The panel may release a decision at any time, and whatever the ruling, it’s likely to be appealed to the Supreme Court.

• This article is based in part on wire service reports.