Federal appeals panel considers gay marriage ban

An opponent of Prop 8 wears a gay pride flag as he dances in front of Prop 8 supporters outside of the Ninth Circuit Court of Appeals on Dec. 6, 2010 in San Francisco. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco heard arguments Monday on the anti-gay marriage proposition after a trial court judge overturned the voter-approved ban ruling it a violation of civil rights.
An opponent of Prop 8 wears a gay pride flag as he dances in front of Prop 8 supporters outside of the Ninth Circuit Court of Appeals on Dec. 6, 2010 in San Francisco. A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco heard arguments Monday on the anti-gay marriage proposition after a trial court judge overturned the voter-approved ban ruling it a violation of civil rights. Justin Sullivan/Getty Images

A three-judge panel of the 9th U.S. Circuit Court of Appeals began to hear testimony over California's same-sex marriage ban on Monday. The federal panel includes a liberal, conservative and moderate jurist who quizzed attorneys on both sides of the gay marriage debate. Legal scholars and activists on both sides of the issue are closely watching a case that could be the first about gay marriage to end up before the U.S. Supreme Court.

At issue was federal District Judge Vaughn Walker’s ruling that Proposition 8, the voter-approved measure that banned same-sex marriage, was unconstitutional. Anti-gay marriage activists and an Imperial County marriage clerk have appealed the ruling.

Attorney David Boeis, who represents two same-sex couples, argued that they have no right to appeal. He referred to previous Supreme Court language to underscore his point.

“The appellants here must have a personal, concrete, particularized injury. And they don’t," he said.

The anti-gay marriage activists who placed Prop 8 on the ballot said they must be allowed to defend their measure because Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have refused to do so.

Judge Randy Smith seemed sympathetic to that argument.

“The governor’s actions and the attorney general’s action have essentially nullified... the initiative."

If the three-judge panel rules the appeal is valid, it would then address Prop 8’s constitutionality. Much of this discussion focused on a U.S. Supreme Court ruling that overturned a Colorado measure that restricted gay rights.

Judge Michael Hawkins, possibly the swing vote, quoted the Colorado decision as he questioned the anti-gay marriage attorney.

“Here’s what Justice Kennedy says: ‘The Constitution neither knows nor tolerates classes among citizens'", Hawkins said. "Those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake. Aren’t you flying right in the face of that?”

Anti-gay marriage attorney Charles Cooper said he is not. He noted that the Colorado law went much further than Prop 8, and that there’s a rational basis for limiting marriage to men and women.

“The key reason that marriage has existed at all in any society and at any time is that sexual relationships between men and women naturally produce children.”

Cooper added that it would be wrong to ignore the majority of voters in California who approved
Proposition 8.

Theodore Olsen, arguing in favor of same-sex marriage, countered that it would violate the Constitution’s Equal Protection Clause to deny the fundamental right of marriage to people who have the “immutable” quality of being gay.

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