A three-member panel of the Ninth Circuit Court of Appeals in California heard oral arguments from opponents and supporters of California’s ban on same-sex marriage this week, continuing the years-long Proposition 8 battle.
The Ninth Circuit panel must first decide whether the plaintiffs, who do not represent the state, have legal standing to bring the appeal and, if so, whether Prop. 8 did violate the U.S. Constitution, as a lower court judge found this past summer.
Prop. 8 was approved by 52 percent of California voters in 2008, limiting the definition of marriage in the state’s constitution to one man and one woman and overturning a previous California Supreme Court’s ruling legalizing same-sex marriage.
U.S. District Judge Vaughn Walker ruled in August that Prop. 8 violated the due-process and equal-protection rights of gay and lesbian couples, clearing the way for marriage equality to again be legal. But shortly after Walker’s ruling, the Ninth Circuit imposed a stay, barring any new marriages taking place while the case was appealed.
If the panel upholds Walker’s ruling, same-sex marriages could begin again in California.
During the two-and-a-half-hour televised hearing, attorney Charles Cooper, who is representing the supporters of the Yes on 8 initiative — as both the state’s governor and attorney general declined to defend Prop. 8 — argued that the state had a legitimate basis for adopting the measure.
Cooper suggested that the main purpose of marriage is procreation, and the state should restrict marriage to heterosexuals so as to encourage responsible procreation and stable family units.
Judge Stephen Reinhardt, considered the most liberal judge on the panel, responded that Cooper appeared to have made a good argument for prohibiting divorce.
Ted Olson, an attorney for the supporters of Prop. 8, argued the initiative “marginalized” gay and lesbian couples and stripped them of “access to what the U.S. Supreme Court has repeatedly characterized as the most important relationship in life. There can be no doubt that it is discriminatory and no doubt that it does great harm.”
He continued that the state “has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter” and that “cannot be justified under any standard of constitutional analysis.”
Both Judges Reinhardt and Michael Hawkins referenced Romer v. Evans, a 1996 U.S. Supreme Court case that struck down an amendment to the Colorado state constitution that repealed an LGBT nondiscrimination ordinance and banned any future LGBT-rights measures.
Hawkins suggested that the two cases were similar, although Cooper argued that the Colorado case was much broader, while the Prop. 8 case applies only to marriage laws.
Judge N. Randy Smith, thought to be the most conservative member of the panel, also questioned Cooper on the logic of California providing same-sex couples domestic-partner benefits, just without the word marriage.
“What is the rational basis if homosexuals have all the rights heterosexual couples have?” Smith asked. “We’re left with a word: marriage.”
Cooper responded that changing the definition of the word would change the concept of the institution of marriage, leading again to the traditional procreation argument.
Reinhardt remarked that the panel may follow a narrow ruling, limiting its finding on the potential constitutional violations of marriage-equality bans just to California and not the entire country. This has led some critics to believe he may be leaning in favor of upholding Walker’s ruling.
The question of the plaintiffs’ standing comprised the first half of the hearing, as the justices considered whether or not the plaintiffs had a direct interest in the question of marriage equality.
Smith expressed concern that Gov. Arnold Schwarzenegger and Attorney General Jerry Brown’s refusal to defend Prop. 8 was in essence a veto of the ballot initiative, which is prohibited by law. Smith and Reinhardt both remarked that they could send the case to the California Supreme Court to decide whether the plaintiffs had standing.
If that is the case and the state Supreme Court rules that the plaintiffs can bring the appeal, the case would then return to the Ninth Circuit panel for a finding on the constitutional question. After the panel delivers its ruling, the losing side can appeal to the full Ninth Circuit Court.
The case is widely expected to eventually reach the U.S. Supreme Court.
Evan Wolfson, executive director of Freedom to Marry, said the plaintiffs continued to present the same dubious claims as in the lower-court proceedings, and he surmised their arguments may again be unsuccessful.
“Today, unable to hide, these same opponents of equality stood before appellate judges and, this time, cameras and all the world could see what a majority of American people have already come to understand: There is no good reason for continuing to exclude committed loving couples from the legal commitment of marriage,” Wolfson said. “When the gavel came down, it was clear yet again that the antigay forces still have nothing.”
The panel did not indicate when it would deliver its decision.
Jen Colletta can be reached at [email protected].