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Gay Marriage Ban Protects State’s ‘Vital Interest,’ Court Told

Gay Marriage Opponents Ask to Reinstate Ban
Proposition 8 was passed by 52 percent of voters after same-sex marriages were legalized by the California Supreme Court in 2008. Photographer: Justin Sullivan/Getty Images

California’s voter-approved initiative banning same-sex weddings protects society’s “vital interest” in reproduction and childrearing and shouldn’t be thrown out, supporters of the law told an appeals court.

Lawyers for supporters of Proposition 8 asked a three-judge panel of the U.S. Court of Appeals to overturn a lower-court ruling that declared the law unconstitutional. U.S. District Judge Vaughn Walker in San Francisco struck down Proposition 8 in August, saying it violated the constitutional rights of gay people to equal protection and due process.

“The people of California and Americans are engaged in a profound debate about the meaning of marriage,” Charles Cooper, an attorney for opponents of same-sex marriage, told a three- judge panel of the U.S. Court of Appeals yesterday. “It is fundamental to the existence of the human race.”

Judge Michael Daly Hawkins asked whether the people of California could “reinstitute school segregation” if they passed another ballot initiative.

“No, it would be inconsistent with the Constitution,” Cooper responded, while saying that same-sex marriage is nothing like racial restrictions that have been overturned by the U.S. Supreme Court.

The case before Walker was the first to go through a federal trial testing whether same-sex unions are protected by the U.S. Constitution. Whichever side loses before yesterday’s panel may seek review by an 11-judge panel of the same court or appeal to the U.S. Supreme Court.

Berkeley, Burbank

Same-sex marriages were legalized by the California Supreme Court in a 4-3 decision in May 2008. In November of that year, 52 percent of voters approved Proposition 8, triggering a lawsuit in federal court by the city of San Francisco and gay couples from Berkeley and Burbank. After the January trial over Proposition 8, Walker concluded in August that San Francisco and the gay couples had demonstrated by “overwhelming evidence” that Proposition 8 violated constitutional rights. He prohibited California from enforcing the ban on same-sex marriage.

Proposition 8 backers say the desire of gays and lesbians to marry is outweighed by the state’s interest in promoting child rearing through traditional heterosexual marriages.

They said in court papers that before recent movements to include same-sex relationships in the definition of marriage, “it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.”

‘Responsible Procreation’

Same-sex marriage supporters have countered that the Constitution doesn’t permit unequal treatment under the law. They contended in court filings that the “responsible procreation” justification can’t pass constitutional muster as a means to create a separate classification of relationships.

“What this case comes down to is that California has built a fence around its gay and lesbian citizens and around marriage,” Ted Olson, an attorney for supporters of same-sex unions, argued before the appeals court yesterday. “The same-sex couples outside that fence are denied access and that is a violation of due process and equal protection rights.”

“The U.S. Supreme Court has said 14 times in addressing marriage, the right to marry is an aspect of the right to privacy, association and liberty,” Olson said. “Mr. Cooper talks about society’s rights. This is not society’s right. It is not California’s right. It is the right of individuals.”

18,000 Gay Couples

About 18,000 gay couples married in California before voters passed Proposition 8. As of 2006, there were an estimated 109,000 gay couples in California, more than any other state, according to U.S. Census data compiled by the University of California, Los Angeles.

Since California approved its ban in 2008, Iowa, Vermont, New Hampshire and Connecticut have legalized same-sex marriage. Massachusetts did so in 2004.

On Aug. 16, the appeals court put Walker’s decision on hold temporarily, barring additional gay marriages in California at least until after the panel rules.

The appeal raises a procedural issue that could determine the outcome. Both California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Proposition 8 in court. The measure’s campaign organizers from moved in to defend the amendment.

Walker said in August that he doubted supporters of the ban could proceed on appeal. He said they don’t have anyone officially representing the state of California on their side and therefore lack legal standing to pursue the case.

‘State’s Interest’

The proponents say they are acting as “agents for the people” of California and as such are legally permitted to “assert the state’s interest,” according to a court filing.

The three-judge appeals panel set aside the first hour of yesterday’s two-hour proceeding to deal with so-called standing issues.

“No, we did not seek to apply or coerce the attorney general to appeal,” Cooper said when asked by Judge N. Randy Smith whether there was an effort to ask or force Brown to represent Proposition 8 in court.

David Boies, an attorney for same-sex marriage supporters, told the appeals panel “it is crystal clear” that his opponents lack standing to pursue their appeal.

Judge Stephen Reinhardt said that Boies’s clients are counting on California’s governor and attorney general to expand the enforcement of Walker’s ruling from two counties where the plaintiff couples live to the entire state.

“As a practical term, we do have to depend on the governor and the attorney general,” Boies said.

Imperial County

Imperial County in Southern California filed an appeal jointly with marriage-ban supporters, raising an additional question of whether a local government can act on behalf of the state.

Hawkins was appointed to the appeals court by President Bill Clinton in 1994, Smith was appointed by President George W. Bush in 2007, and Reinhardt was appointed in 1980 by President Jimmy Carter. Reinhardt refused last week to disqualify himself from the case after gay-marriage opponents complained that his wife, the executive director of the Southern California chapter of the American Civil Liberties Union, had participated in the lawsuit.

The three judges were selected for the panel by a random drawing. The panel didn’t say when it will rule.

The case is Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco.) The district court case is Perry v. Schwarzenegger, 09-02292, U.S. District Court, Northern District of California (San Francisco).

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