Federal appeals court hears Prop 8 gay marriage case today [Updated]

Proposition 8 protesters outside the courtroom where the appeal was being heard, December 6, 2010
Proposition 8 protesters outside the courtroom where the appeal was being heard, December 6, 2010
Julie Small/KPCC

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A federal appeals court in San Francisco hears arguments today over a judge’s decision to overturn Proposition 8 – the voter-approved measure that banned same-sex marriages in California.

Updated at 11:16 a.m. | Permalink

9th Circuit Court of Appeals deciding whether gay marriage ban supporters can legally appeal ruling that struck down the measure as 'unconstitutional'

In August a U.S. District Judge struck down the measure as unconstitutional. Prop 8 supporters appealed, but they may lack the right to do so.

The Ninth Circuit Court of Appeals devoted the first hour of its two-hour hearing to this question: Do Prop 8 campaigners have a right to appeal the lower court’s ruling?

Normally the defendant would have appealed – in this case the state of California is the defendant. But Governor Arnold Schwarzenegger has refused to defend Prop 8 at the lower court level and on appeal. So has Attorney General Jerry Brown. That means there’s no California official defending the law.

Prop 8 supporters argue they ought to be allowed to defend the measure instead. A panel of three federal appeals court judges will decide if that’s true.

Imperial County has also asked to be allowed to defend Prop 8 on appeal. Counties, they argue have a stake in the outcome because they issue marriage licenses.

Updated at 11:07 a.m. | Permalink

Prop 8 opponent: Voters passed law; "It just happens to be unconstitutional"

Prop 8 proponents have argued that marriage is traditionally between a man and a woman. Plaintiff Kristin Perry said that’s no reason to continue to discriminate against same sex couples who want to marry.

"A tradition of discrimination is not one to uphold," said Perry. "And I think that what the courts are here to do are protect groups like us – groups that belong to a minority so that minorities are protected against the majority. Now I know the voters passed a law. It just happens to be unconstitutional."

Updated at 9:17 a.m. | Permalink

Prop 8 supporter: 'You better get used to being discriminated against'

"Where does God fit into your equality?" said Prop 8 supporter preacher Ruben Israel outside the court. "California voted loud and clear. Why can't you people accept democracy? You better get used to being discriminated against, because when you meet God in Heaven, he's going to discriminate against you in the lake of fire.

"You are perverted! You are wicked! God says you're an abomination. There is no holy matrimony with a male-male marriage. Shame on you!"

Updated at 9:09 a.m. | Permalink

Couple challenging Prop 8: 'We'll be on the right side of history'

One of the two couples who have been challenging Proposition 8 in this case is Jeff Zarrillo and Paul Katami.

"This is an exciting time," says Zarrillo. "If anybody that was going through this, I think anybody would say the same thing. You're anxious, you're excited. But it's a great time, because you know you have the truth on your side.

"And we know we have a great law on our side, and we know we have the amazing opinion from the district court on our side as well. So we're very confident as well."

"This whole process for us really exemplified how much damage is done on a day to day basis that we cannot be married," says Katami. "We're going to be celebrating our 10th year together. We love each other, we own a home. I mean, we're kind of living that 'American dream' in a way.

"But it's completely colored by the fact that we are prohibited from rights that other Americans have. So for me, that damage is really focused on this process and I know we're on the path to healing that, and making it right. So as much as we want to be impatient, we have to remain patient, and we have to just follow the course, knowing that eventually we'll be on the right side of history."

Original story:

Georgetown Law Professor Nan Hunter says the court will consider equal protection arguments over whether gays and lesbians, as a class of people, deserve the same protections as other so-called “suspect classes.”

“When a court looks at a law that classifies by race or sex or religion," says Hunter, "the court is going to look really closely and say boy, you better have a darn good reason for this classification because there just isn’t anything normally that a racial classification is appropriate for. We do not treat people differently based on race, or we do not treat people differently based on religion.”

Hunter, who's also a scholar at UCLA’s Williams Institute, says that if courts decide gays are a suspect class, it likely would agree that banning gay marriage is unconstitutional.

Audio: In an interview with KPCC’s Frank Stoltze, Hunter said the court is also considering whether anti-gay marriage groups have a right to fight for Proposition 8 in court.