Ninth circuit judges hear arguments in Prop 8 appeal

People upset by the passage of Proposition 8, which defines marriage as a union between one man and one woman, protest at the California State Capitol in Sacramento on Sunday, November 9, 2008. Photo copyright Kelly B. Huston.

People upset by the passage of Proposition 8, which defines marriage as a union between one man and one woman, protest at the California State Capitol in Sacramento on Sunday, November 9, 2008. Photo copyright Kelly B. Huston.

Supporters and opponents of same-sex marriage must now wait for the results of Monday morning’s Proposition 8 hearing before a three-judge panel of the Ninth Circuit Court of Appeals. The hearing from the crowded courtroom in San Francisco was broadcast live on C-SPAN and streamed on the Internet.

Teresa Rowe, a San Francisco resident who works in Oakland, went to an early morning vigil outside the courthouse with other supporters of same-sex marriage before going home to watch the hearing on TV with Kristin Orbin, her girlfriend of six years. Rowe said the atmosphere was a little tense, as opponents of gay marriage had their own protest set up, but that she is proud to be part of this historical moment.

“This is something that someday we’ll be telling our grandkids about. But hopefully by then, they’re going to be shocked this was ever an issue,” said Rowe. She said that comparing the battle over same-sex marriage to interracial marriage, or any civil rights issue, is fitting. “I think people who oppose same-sex marriage are going to feel just as guilty as people who opposed civil rights back in the day,” said Rowe. “And in that way, I kind of feel sorry for them.”

Appellate court judges Stephen Reinhardt, N. Randy Smith, and Michael Hawkins heard arguments for and against U.S. District Court Judge Vaughn R. Walker’s decision this summer to overturn Proposition 8, the ballot measure that defines marriage as reserved for one man and one woman. In past days, Reinhardt was asked to recuse himself from the panel because his wife is the executive director of the American Civil Liberties Union in Southern California. He refused.

Attorney Charles Cooper spoke on behalf of protectmarriage.com, an anti gay-marriage group that was among the original proponents of the ballot measure. Cooper argued at length that same-sex marriage undermines an institution that has been part of human society for “time immemorial.” He asserted that society is disinterested in “platonic relationships between men and women” and called for a return to focus on “traditional marriage.” “Marriage is an ancient and ubiquitous social institution,” said Cooper. “It is fundamental to the survival of the human race.”

The judges asked Cooper for his response to the comparison between this issue and bans on interracial racial marriage, once common throughout the southern United States. Cooper countered that same-sex marriage, in his mind, is a totally different issue. “This is nothing like the racial restrictions,” said Cooper. “There is simply no legitimate rational basis whatsoever to deny the right of a mixed race couple to marry.”  But there is a rational basis for a state to prohibit gay marriage, Cooper argued.  Because an interracial couple can procreate and a same-sex couple can’t, Cooper deemed the comparison illegitimate.

Cooper met with intense scrutiny from the judges, who appeared particularly interested in the fact that California had given same-sex couples the right to marry, through a state Supeme Court ruling; and was now trying to take that right away through a voter iniatitive. His opponent in the arguments, former U.S. Solicitor General Ted Olson, argued vehemently that this removal of a previously-granted right helped make Proposition 8 both reprehensible and unconstitutional. “California has built a fence around its gay and lesbian citizens,” said Olson. “That is a violation of the equal protection clause and a violation of the due process clause.”

Proposition 8 was passed by the voters in 2008, and amended the California Constitution to state that marriage is only “valid” between a man and a woman. The ballot measure overturned a previous California Supreme Court ruling finding that the right to same-sex marriage is protected by the state constitution.

In May 2009, following the passage of Proposition 8, two same-sex couples were denied marriage licenses in California, and brought a federal lawsuit challenging the proposition’s constitutionality in a case called Perry vs. Schwarzenegger. In August 2010, Judge Walker sided with Proposition 8’s opponents, declaring the measure unconstitutional and prohibiting its enforcement.

In Monday’s hearing, Olson went back to this issue’s roots, illuminating what he presented as the opposition’s flawed logic by highlighting claims made by protectmarriage.com during the original campaign for Proposition 8. “They’re saying that if gay marriage were permitted, the existence of same-sex marriage will somehow make children prematurely preoccupied with issues of sexuality,” said Olson, in an argument that brought laughter from the courtroom spectators. “That logic would equally warrant banning comic books, video games, television, and conversations with other children”

Cooper spent much of his argument time trying to make the case that childbearing is the centerpiece of marriage. He argued that the institution should be reserved for men and women because of their “natural procreative capacities.”

Teresa Rowe, reacting afterward from Oakland, said she had always found this logic perplexing.  “I am SO sick and tired of this procreation argument,” she said. “What’s next? Are we going to prevent elderly couples who are past child-rearing age from marrying?” Rowe hoped to get married last summer after Judge Walker’s ban on Proposition 8. Now, she said, she and girlfriend Orbin must wait for the ruling in this hearing, and wait they will; Rowe said they will settle for nothing less than a marriage that affords them all the same rights as an opposite-sex couple.

Rory Little, professor of law at UC Hastings, said he felt the judges handled both arguments even-handedly. “I thought the judges did a really good job of keeping it on a high theoretical level,” said Little. “I thought they also did a really good job of not tipping their hand too much—they tried to express neutrality.” Law professor Margaret Russell of Santa Clara College agreed, and speculated that perhaps the hearing being broadcast on television contributed to the bias-free atmosphere.

Before the attorneys began their arguments on the constitutionality of Proposition 8 this morning, they spent an hour on a separate procedural debate that is of crucial importance for the case. Apart from the broader questions about gay marriage in society, the appellate judges must first decide whether the groups trying to defend Proposition 8 in the courts have what the law calls “standing”—the legal right, that is, to pursue the case in appellate courts.

Because both Attorney General Jerry Brown and Gov. Arnold Schwarzenegger have declared since the passage of the anti-gay-marriage law that they would not defend it in court, attorneys for certain groups opposed to gay marriage have stepped into the legal argument to make the case that Proposition 8 is a legitimate expression of the voters’ will.

For Monday morning’s appellate argument, the two lawyers defending Proposition 8 were Cooper, representing protectmarriage.com, and Robert Tyler, an attorney representing Southern California’s Imperial County. Tyler, who appeared to face a highly skeptical panel of judges, was advancing the argument that clerks in his county have legal standing—a personal stake in the case—because they have to issue marriage licenses.

If the Court of Appeals finds that neither of these groups is directly affected by the law, and the current finding that it is unconstitutional, then the broader arguments about gay marriage could become irrelevant. Without the proper parties to argue both sides, the court could rule, the legal challenge is over, and Proposition 8 unconstitutional.

Professors Russell and Little had a similar reaction to this standing question in the hearing. While they thought the proponents of Proposition 8, represented by Cooper, will likely be granted standing, they felt Tyler’s argument for standing in the case fell short and that he seemed unprepared.

Russell warned that it could be a long time before the Ninth Circuit judges issue their ruling. “Appeals before the Ninth Circuit can take a year,” she said, “although it seems the pace here is quicker since it’s such a high-profile case—it could be sooner than that.”

Russell and Little both said they believe the judges will likely uphold Judge Walker’s ban on Proposition 8 and his conclusion that rights once given can’t be taken away. But if that happens, they said, they doubt this would be interpreted as a more sweeping statement on the constitutionality of same-sex marriage. “I think whatever this panel does, it’s just a stop on the way to the Supreme Court,” said Little. “It’s all about how they set it up for that.”

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