Feisty panel of judges asks critical questions of Proposition 8

Lisa Keen

SAN FRANCISCO -- Famed attorney Ted Olson told a 9th Circuit U.S. Court of Appeals panel Monday that the reason proponents of Proposition 8 have proffered to justify their ban on same-sex marriage is "nonsense."

That reason, Olson said, reading from a page in the argument brief filed by attorneys for the Yes on 8 coalition which promoted passage of California's ban on same-sex marriage, was that same-sex marriage "will make children prematurely preoccupied with issues of sexuality."

"If believed," Olson said, "that would justify the banning of comic books, television, video games, and even conversations between children."

That was not exactly the reason Yes on 8 proffered during their successful 2008 campaign to amend the state constitution to ban same-sex marriage. Back then, the primary reason, Olson noted, was "protecting children" from the notion that marriage between same-sex couples was OK.

So, what should the court consider as the reason to deny same-sex couples the right to marry, asked Judge Michael Hawkins.

"Should we look just at the record in the district court," he asked, or should we "imagine whether there is any conceivable rational basis" to ban gays from marriage?

Olson urged the court not to use its own imagination to figure out whether there might be any conceivable rational reason but to look at the reasons proffered by the Yes on 8 proponents and to determine whether they "make sense" and whether they are "motivated by fear" or a dislike of gay people.

"Protecting our children," said Olson, "is not a rational basis. It's based on the idea there's something wrong with" gay people.

Both Olson and his legal counterpart, Charles Cooper, argued with greater passion and animation during Monday's argument before the federal appeals court than they did in January and June before U.S. District Court Judge Vaughn Walker. It was Walker's ruling in August -that California's ban on same-sex marriage violated the U.S. Constitution--that brought them to the appeals court in San Francisco Dec. 6. Unlike at the district court trial, where the U.S. Supreme Court forbid any television or web broadcast, the appeals proceedings were carried live on national television by C-SPAN and several California stations. Demonstrators crowded outside the federal building in San Francisco under the watchful eye of federal protection service officers. And interested observers and journalists packed the courtroom and watched broadcasts all over the country.

Any pre-courtroom second-guessing that observers may have harbored over the political leanings of the three judges seemed to be put to rest fairly quickly, as the judges vigorously challenged each side's arguments on both matters before the court - Yes on 8 and Imperial County's legal qualification (standing) to appeal and the validity of Walker's declaration that Proposition 8 violates the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution.

Judge N. Randy Smith, an alum of the Mormon-run Brigham Young University, came out swinging hard questions for Cooper over Yes on 8's claim to have legal standing to press the appeal.

The three judges were also tough in questions about the merits of Judge Walker's decision. As Cooper attempted to read from his prepared statement, Judge Hawkins interrupted almost immediately to ask him whether voters have the right to reinstitute segregation in public schools.

"No," said Cooper.

"Why not?" asked Hawkins.

"Because it would be inconsistent with the U.S. Constitution," said Cooper.

"As interpreted by the U.S. Supreme Court," interjected Hawkins.

"Yes," conceded Cooper.

But in 1870, the U.S. Supreme Court probably would not have interpreted the constitution to forbid segregation, would it? asked Hawkins.

Cooper conceded that was probably true.

"Well, how is this different?" asked Hawkins.

When Cooper tried to argue that society has a rational interest in the creation of children and in promoting responsible procreation to ensure that children are adequately cared for, Judge Reinhardt suggested that might be a "good argument for prohibiting divorce."

Judge Smith jumped in to challenge Cooper on this point, too. He noted that California domestic partnership laws provide same-sex couples with all the same benefits and rights to marriage, including those involving child-rearing. What is the rational reason for denying same-sex couples the designation of the word marriage, he wondered.

Gay legal activists seemed pleased with how the arguments went Monday.

Evan Wolfson, head of the national Freedom to Marriage Project, said that, overall "it looks promising, both on standing and on the merits."

Jenny Pizer, head of Lambda Legal Defense's Marriage Project, said she wouldn't be surprised if the panel's eventual ruling includes "multiple decisions" on how they reached the same outcome "with different reasonings."

"And if they conclude Prop 8 is invalid while disagreeing about the details of why," said Pizer, "that may be just fine."

The panel is expected to render its decision on both the standing issue and the constitutionality of Proposition 8 within a few months. Boies speculated during a post-argument press conference that the earliest the panel would likely render a decision is early next year and the earliest the case might be heard by the Supreme Court -during its almost inevitable appeal--would be 2012.

(c) 2010 by Keen News Service. All rights reserved.

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