SAN FRANCISCO (CN) - California's voter-approved gay marriage ban was under scrutiny again Monday when a three-judge panel of the 9th Circuit considered the constitutionality of Proposition 8.
Outside the courthouse, spectators lined up before dawn in hope of nabbing a seat in the courtroom. Carrying signs with slogans such as, "We All Deserve the Freedom to Marry," they were met with loud opposition from across the street. One man shouted through a meagphone: "You'll never have holy matrimony, you perverts. You've stolen the word 'gay,' now you're trying to steal democracy." A young gay couple stood hand in hand on the courthouse steps watching it all, one holding an open photo album displaying their wedding picture. His partner kissed his hand.
The hearing was the result of an appeal brought by supporters of Prop. 8, challenging U.S. District Judge Vaughn Walker's August ruling that declared the ban unconstitutional.
Theodore Olson, attorney for two gay and lesbian couples contesting the ban, said Prop. 8 "marginalized and stripped millions of gays and lesbians of what the United States Supreme Court called a fundamental right," by amending the California Constitution to recognize marriages only between a man and a woman.
But Prop. 8 attorney Charles Cooper argued that homosexual marriage was harmful to society, and said that to uphold Walker's ruling would undermine the will of California's voters.
"The court is presented with this fundamental question, of whether the definition of marriage is one for the people to decide through the democratic process," Cooper said. He added that gay marriage "bears little resemblance to the traditional, historical purpose of marriage," which is for a man and a woman to procreate.
Cooper's social argument of heterosexual marriage as better for children, Judge Stephen Reinhardt mused, "seems like a good argument for prohibiting divorce," to much laughter from the packed courtroom.
The judges grilled Cooper and Olson on whether effectively banning gay marriage in 2008, after the California Supreme Court had legalized it, made Prop. 8 more likely to be deemed unconstitutional.
"I'm not sure that's a settled question," said Reinhardt. "Would it be the same if the state had not gone as far?"
"If you take away a bunch of rights, that's bad, but if you take away one right, that's OK? Didn't same-sex couples have a right to marry before Prop. 8?" Judge Michael Daly Hawkins asked Cooper.
"My worry is that I'm trying to find the rational basis in this situation, when California has gone as far as it has," said Judge N. Randy Smith.
The issue of whether Prop. 8's proponents even have standing to appeal was also contentious.
Olson's partner in the trial, David Boies, said the heart of the matter came down to the fact that the "appellants haven't shown any concrete injury" to have standing.
The judges appeared concerned that Attorney General Jerry Brown and Gov. Arnold Schwarzenegger both declined to defend Prop. 8. Reinhardt said the judges might look to the California Supreme Court for advice on the question of whether Brown and Schwarzenegger were essentially vetoing the voters' decision by refusing to defend the initiative.
"People are allowed to pass a measure, and if the state refuses to defend it, it's just tossing in the towel," said Reinhardt.
"But the fact that there's no one to defend it does not give standing," Boies said. "It is clear whatever intervention rights - the proponents do not have standing."
But Reinhardt said, "I don't see any harm in asking the California Supreme Court what the law is."
Cooper seemed to agree, saying, "I urge you to ask the California Supreme Court on the issue before you dismiss this case and allow a single district court decision nullifying the will of the people in California."
In a press conference after the hearing, which ran almost an hour over schedule, Cooper said he thought Boies and Olson disrespected and demeaned his arguments and that they "believe that everyone on the other side is irrational."
He added, "The place for this question to be decided is where it was decided, through the electoral and democratic process. If marriage is to be redefined in this state, it should be the people that make that decision."
Boies said it may take until 2012 before the issue is resolved, particularly if its proponents appeal to the U.S. Supreme Court and the court accepts the case. He said he did not expect a ruling from the 9th Circuit until early next year.
After the hearing, Olson said the attorneys for Prop. 8's backers had presented a weak case at trial in January, and with not nearly as much expert testimony and evidence as the plaintiffs' side.
"I don't know what the argument is on the other side other than a label, a bumper sticker that says 'marriage is between a man and a woman,'" Olson said.
Boies added, "I think that this is a turning point, and 20-30 years from now, people will look on this case the way we look at Brown v. Board of Education and ask, 'Why did it take so long?'"
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