Court Hearing Prop. 8 Appeal

BY Advocate.com Editors

December 05 2010 12:45 PM ET

A federal appeals court in San Francisco is set to hear arguments in the case of Proposition 8, one of the most contentious and hard-fought legal battles in the history of marriage equality.

Arguments before the U.S. court of appeals for the ninth circuit will begin today at 10 a.m. pacific time. Unlike the trial in the case, Perry v. Schwarzenegger,the appeal proceedings will be nationally televised (Advocate.com will carry a live feed).

During the arguments, a three-judge panel will consider two main questions before the court: whether a federal judge erred in ruling the anti-gay marriage initiative unconstitutional, and whether a coalition of Prop. 8 supporters who defended the ballot measure at trial have standing to appeal the case.

Representing two California gay couples who sued the state after they were denied marriage licenses, former U.S. solicitor general Ted Olson will argue that U.S. district judge Vaughn R. Walker was correct in striking down Prop. 8 in August.

In that sweeping opinion, Judge Walker wrote that Prop. 8 served no legitimate government interest. On the contrary, it singled out same-sex relationships as inferior, the result of historical prejudice against gays and lesbians, he wrote.

Outgoing California governor Arnold Schwarzenegger — as well as
Governor-elect Jerry Brown and Attorney General-elect Kamala Harris
— have all said that they would not appeal Walker's decision.

"The tragic time has long passed when our government could target our gay and lesbian citizens for discriminatory, disfavored treatment — even imprisonment — because those in power deemed gay relationships deviant, immoral, or distasteful," Olson wrote in an October brief to the court, one that drew upon landmark gay rights cases before the U.S. Supreme Court as well as the high court's decision in the 1967 case Loving v. Virginia,which struck down laws banning interracial marriage.

Olson and co-lead counsel David Boies have said they expect the case will ultimately be decided by the Supreme Court, but they also argue that their opponents lack legal standing to appeal the case.

Proponents of Prop. 8, represented by lead attorney Charles J. Cooper, argue that Judge Walker's ruling was a baseless affront to both centuries of tradition and the will of California voters — a majority of whom opposed allowing same-sex couples the right to marry.

On the merits of the case, Cooper will again argue that "responsible procreation" remains a core tenet of marriage, one that gay marriage by definition does not serve. "[A] central and abiding purpose of marriage has always been to promote responsible procreation and thereby increase the likelihood that children will be born and raised in an enduring and stable family environment by the men and women who brought them into the world," Cooper wrote to the court in September.

When asked at trial for evidence that substantiates the claim, Cooper responded to Judge Walker that "you don't have to have evidence of this point."







But Walker ruled that Prop. 8 failed to increase any likelihood that opposite-sex couples would marry and raise children within stable households.

Last week Prop. 8 proponents attempted to disqualify ninth circuit judge Stephen Reinhardt from the panel because he is married to a former director of the American Civil Liberties Union's Southern Californa office. Reinhardt rejected the request.  

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