Proposition 8 Before Federal Appeals Court

Dec. 6, 2010— -- A federal appeals court in San Francisco heard oral arguments Monday in the landmark legal battle over Proposition 8, California's voter-approved ban on same-sex marriage.

A three-judge panel of the Ninth Circuit Court of Appeals is weighing two questions: whether supporters of the ban have legal standing to bring an appeal, and whether the ban itself is unconstitutional.

The proceedings were nationally televised live on C-SPAN.

In August, U.S. District Judge Vaughn Walker struck down Prop 8 saying it amounts to unconstitutional discrimination and ordered it lifted immediately. But the Ninth Circuit issued a stay on the injunction while the appeal is pending.

Neither Gov. Arnold Schwarzenegger nor state Attorney General Jerry Brown chose to defend the measure on appeal.

"There is not a single governmental defender defending this action," said attorney Robert Tyler, who argued his client, a deputy clerk from Imperial County, Calif., had a right to bring the appeal. "The outcome in this case will alter my client's official duties."

"The fact that there is no one to defend does not give standing," said David Boise, attorney for the plaintiffs, who argued Judge Walker's ruling should stand. "The appellants here do not have the personal, concrete, particularized injury that this court… made absolutely clear is the law."

The panel also grappled with whether the ban itself amounted to unconstitutional discrimination imposed by popular vote.

"Should they reinstitute school segregation through a public vote?" asked Judge Hawkins.

"That would be inconsistent with the constitution," replied attorney Charles Cooper, who supports Prop 8.

"How's this different?" questioned Hawkins.

"We believe that there is a rational basis justifying the traditional definition of marriage," said Cooper. "The key reason marriage has existed at all is that sexual relationships between men and women naturally produced children."

But Ted Olson, the former George W. Bush administration solicitor general who once opposed his now partner Boise in the famous Bush v. Gore case in 2000, disputed the narrow definition presented by Prop 8 supporters and called marriage a fundamental "right of an individual."

"What the U.S. Supreme Court has said in 14 cases is that the right to marriage, in the context of abortion, in the context of prisoners, in the context of contraception and in the context of divorce, that the right to marry is the aspect of the right to liberty, association, privacy," said Olson.

"They [supporters of Prop 8] are taking away a constitutional right – recognized by the state of Calfiornia. That in and of itself makes Prop 8 unconstitutional," he said.

A decision from the appeals court panel could come at any time but is expected to take months. Both sides in the case have promised to appeal to the U.S. Supreme Court if they disagree with the outcome.

The effort to ban gay marriage in California was first launched in response to a state Supreme Court decision allowing same-sex couples to wed. Voters approved Proposition 8 in a November 2008 ballot with a 52 percent vote.

Despite the popular support, Judge Walker found that the measure was rooted in "unfounded stereotypes and prejudices" and that the plaintiffs in the case -- one lesbian and one gay couple -- demonstrated by "overwhelming evidence" that it violates rights to due process and equal protection under the Constitution.