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.
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 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.
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 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.