JEFFREY BROWN: And we turn to the latest twist in the debate over gay marriage in California.
In 2008, voters passed a ballot measure called Proposition 8, banning gay marriage, but, in August of this year, a federal district judge struck down the measure, ruling that it was unconstitutional to treat same-sex couples differently.
That ruling was then challenged. And, today, a federal appeals panel of three judges heard arguments in a session that was, most unusually, broadcast live.
The first issue today: Do opponents of same-sex marriage have authority or standing to appeal the August ruling? Governor Arnold Schwarzenegger and other state officials had declined to bring an appeal.
Charles Cooper, the attorney for Protect Marriage, the group behind Proposition 8, cited past cases that allow outside groups to bring a case.
CHARLES COOPER, lead counsel, Protect Marriage: The California Supreme Court allowed these proponents to intervene in the Strauss case and to defend the constitutionality under the state’s constitution, just like Forsythe (ph), to defend the constitutionality of Proposition 8, when no one else would do so. All of the state defendants refused to defend that statute.
JEFFREY BROWN: The panel appeared dubious about whether the ban supporters were qualified to appeal, but also seemed worried about allowing the governor and attorney general to effectively kill Prop 8 by refusing to defend it.
HON. STEPHEN REINHARDT, U.S. Court of Appeals, 9th Circuit: If the state doesn’t defend it, it’s just tossing in the towel. The governor is not allowed to veto this measure, but he can in effect veto it.
JEFFREY BROWN: Arguing on behalf of same-sex marriage proponents, attorney David Boies said the Supreme Court has repeatedly held that only injured parties have authority to seek appeal.
DAVID BOIES, co-Lead counsel for the plaintiffs: Your Honor, I would suggest that, because it is so clear that, in order to have an ability to invoke the jurisdiction of this court, the appellants here must have a personal, concrete, particularized injury, and they don’t.
JEFFREY BROWN: The second portion of the hearing went to the constitutional issue, whether the voter-approved ban violated the federal civil rights of California’s gays and lesbians.
The case for same-sex marriage was made by former Solicitor General Ted Olson, David Boies’s one-time adversary when they argued Bush v. Gore in the 2000 election.
THEODORE OLSON, co-lead counsel for the plaintiffs: It is important to focus on the fundamental fact that California has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter.
JEFFREY BROWN: Cooper argued that Prop 8 was aimed at the essence of what he called traditional marriage.
CHARLES COOPER: The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.
When a relationship between a man and a woman becomes a sexual one, society immediately has a vital interest in that, for two reasons. One, society needs the creation of new life for the next generation, but, secondly, society is — its vital interests are actually threatened by the possibility that an unintentional and unwanted pregnancy will mean that the child is born out of wedlock and is raised by, in all likelihood, its mother alone. And that directly implicates society’s vital interests.
JEFFREY BROWN: But Judge Stephen Reinhardt, a liberal appointed by President Carter, questioned that reasoning.
HON. STEPHEN REINHARDT: That sounds like a good argument for prohibiting divorce, but I…
But how does it relate to having two males or two females marry each other and raise children, as they can in California?
JEFFREY BROWN: Olson told the judges that the very notion of protecting children from gay marriages was discriminatory.
THEODORE OLSON: Protect our children from thinking that gay marriage is OK. Well, what is matter — what is the matter with that? It must be something about gay people that are getting married that would be disturbing to California voters, and you have to take that risk away from them.
JEFFREY BROWN: Judge Randy Smith, who was appointed by President George W. Bush, asked how Prop 8 protected the idea of marriage if gay couples already had many of the other protections in civil unions in California.
HON. N. RANDY SMITH, U.S. Court of Appeals, 9th Circuit: If in fact the homosexual couples have all of the rights that the heterosexual couples have, we’re left with a word: marriage. What is the rational basis for that?
CHARLES COOPER: Your Honor, you are left with a word, but a word that is essentially the institution. And if you redefine the institution, if you redefine the word, you change the institution.
HON. STEPHEN REINHARDT: The court will stand adjourned.
JEFFREY BROWN: The panel is expected to rule on the case soon. That decision will then likely be appealed to the full 9th Circuit and is eventually expected to make its way to the Supreme Court.