Prop. 8: judges express doubts about California gay marriage ban

Supporters of Prop. 8, the California gay marriage ban, face tough questioning in hearing before an appeals court. They are seeking a reversal of a federal judge's ruling against Prop. 8.

By Warren Richey -


Proponents of a ban on same-sex marriage in California are facing an uphill battle in their effort to reverse a federal court ruling last summer declaring that gay and lesbian couples enjoy a fundamental right under the US Constitution to marry.

Lawyer Charles Cooper encountered tough questioning from a three-judge panel of the Ninth US Circuit Court of Appeals in San Francisco on Monday. The three-hour session was broadcast live nationwide on C-SPAN.
Mr. Cooper urged the appeals court judges to overturn a federal judge’s decision in August striking down Prop. 8, which amended the state’s constitution to restrict marriage to one man and one woman.
The ballot initiative was undertaken to overturn a 2008 California Supreme Court decision finding, for the first time, that the state constitution recognized a right for same-sex couples to marry. The ruling resulted in 18,000 gay and lesbian marriages in California.
But that window of opportunity closed later in 2008 when California voters passed Proposition 8. The constitutional amendment banning gay marriage was approved by 52 percent of the vote.
In overturning the ballot initiative, US District Judge Vaughn Walker ruled that the effort violated the US Constitution.
Cooper told the appeals court that the judge had failed to follow existing precedent. “There have been eight courts that have addressed this issue and all eight have upheld the traditional marriage laws,” he said.
Circuit Judge Stephen Reinhardt took issue with Cooper’s characterization of the case. He said the relevant issue is how the court should respond in a situation in which a protected class of individuals – gay and lesbian couples – who have enjoyed a right to marry and have then had that right taken away from them.
“If you are taking a right from a particular class without any reason … then you cannot do it,” Judge Reinhardt said. “You have to take into account all the circumstances.”
Reinhardt and a second panel member, Judge Michael Hawkins, suggested that the California ballot initiative was similar to an antigay ballot measure in a 1996 Colorado case called Romer v. Evans. In that case, the ballot measure was struck down by the US Supreme Court.
The court ruled that the measure singled out the gay community for disfavored treatment in violation of protections in the 14^th Amendment.

Gay community 'singled out'

Theodore Olson, a lawyer for two couples challenging the marriage ban, said the campaign to pass Prop. 8 singled out the gay community in California for disfavored treatment. “California has built a fence around its gay and lesbian citizens and it has built a fence around the institution of marriage,” he said.
Mr. Olson criticized the Prop. 8 campaign, saying it lacked any rational reasoning. He said proponents told prospective voters the measure was necessary to “protect our children from thinking that gay marriage is OK.”
He said the group later embraced an argument that “same-sex marriage will make children prematurely occupied with issues of sexuality.”
Olson quipped: “That would warrant banning comic books, video games, television, and conversations with other children.”
Cooper told the appeals court that the state had a rational reason to favor opposite-sex couples over same-sex couples in marriage. He said reserving marriage for heterosexual couples was an effort by society to encourage the responsible care and rearing of children by their biological parents. He said that reasoning extended to the possibility of unintended or unwanted pregnancies.
Gay couples do not face that issue, he said.
Cooper said Prop. 8 was not passed to punish or withdraw rights from gay couples. Rather he said it was passed in response to the actions of the California Supreme Court. It was an effort to return the state’s definition of marriage to its long-held tradition of one man and one woman, he said.

Arguments on standing

In addition to arguments on the issue of gay marriage, the judges heard an hour of argument on the question of whether Prop. 8 proponents had the necessary legal standing to argue the case.
In most cases, government officials defend the constitutionality of a ballot measure passed by a majority of citizens. But California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have both refused to defend Prop. 8 in the courts.
Prop. 8 proponents litigated their side of the case after being granted special permission by the court. The question now is whether the appeals court will extend that special permission, or simply declare the case over since the governor and attorney general are refusing to participate.
Not all government officials in California are refusing to defend the measure. Imperial County and its deputy clerk are asking the appeals court to allow them to intervene in the case as well.

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