[Vision2020] 12/7/2010: LA Times: Court weighs whether California's gay marriage ban violates US Constitution

[Ted Moffett]

http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-gay-marriage-trial,0,1857270.story

3-judge appeals court weighs whether California's gay marriage ban
violates US Constitution

LISA LEFF, PAUL ELIAS

Associated Press

December 7, 2010, 3:49 a.m.

SAN FRANCISCO (AP) — A line of questioning at an appeals court hearing
over California's gay marriage ban suggested the three judges could
issue a decision that would legalize same-sex marriage in that state
but leave intact bans in other western states under the court's
jurisdiction.

The 9th U.S. Circuit Court of Appeals heard nearly three hours of
arguments Monday during a televised hearing that reached a nationwide
audience anxious for a final decision on whether voter-approved
Proposition 8 and similar same-sex marriage bans violate the U.S.
Constitution.

The judges appeared troubled over whether they could recognize
marriage as a civil right for all same-sex couples or only those in
states that already grant gays the rights of marriage without the
title.

Theodore Olson — who argued a portion of the case on behalf of the two
same-sex couples who sued to overturn Proposition 8 and persuaded a
lower court to strike it down — said denying gays the right to wed
constitutes discrimination that cannot be justified under any
circumstances.

"What this comes down to, it seems to me, is that California has built
a fence around its gay and lesbian citizens and it has built a fence
around the institution of marriage, which the Supreme Court says, not
based on procreation or anything else, is the most important
relationship in life," Olson said.

His oratory prompted Judge Stephen Reinhardt, the panel's most liberal
member, to ask if Proposition 8 were a unique case because it amended
the California Constitution to outlaw same-sex marriages five months
after the state Supreme Court had legalized them.

"Your closing speech would require a holding that any state that did
not permit gay marriage would be in violation of the Constitution,"
the judge said. "There is a possibility, I think in this case, that
Proposition 8's withdrawal of the right of marriage from gays and
lesbians is unconstitutional under the circumstances that they enjoyed
that right, that they are given every aspect of marriage and the only
thing taken away is the honorific of marriage."

Attorney Charles Cooper, who represents sponsors of the 2008 measure,
argued that same-sex couples can be treated differently when it comes
to marriage without running afoul of the Constitution because "sexual
relationships between men and women naturally produce children."

"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,"
Cooper said. "Its vital interests are actually threatened by the
possibility of an unintentional and unwanted pregnancy."

Mondays' hearing also focused on whether Proposition 8's supporters
have legal standing to challenge a lower court ruling that the ban was
unconstitutional. The issue surfaced after outgoing California Gov.
Arnold Schwarzenegger and Attorney General Jerry Brown both refused to
challenge the ruling that overturned the ban.

The panel appeared dubious about whether the ban's supporters were
qualified to appeal but also seemed worried about allowing the
governor and attorney general to effectively kill Proposition 8 by
refusing to defend it.

Opponents of Proposition 8 contend it violates the due process and
equal protection rights of gays and lesbians under the U.S.
Constitution by denying them the right to marry the person of their
choice and by singling them out for disparate treatment without a
legitimate rationale.

C-SPAN's coverage of Monday's hearing gave the public outside the 9th
Circuit headquarters in San Francisco its first — and possibly last —
direct look at the debate raging in the landmark challenge that could
impact 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 and said 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," he said.

___

Associated Press writers Marcus Wohlsen in San Francisco and Christina
Hoag in Los Angeles contributed to this report.

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Vision2020 Post: Ted Moffett