Prop 8. gay marriage ban to be argued in federal appeals court

The long-running fight over gay marriage in California heads to a federal appeals court Monday. A panel of the Ninth US Circuit Court of Appeals must decide whether a federal judge was correct in ruling that the US Constitution protects the right of gay and lesbian couples to marry.

The long-running fight over gay marriage in California heads to a federal appeals court on Monday for two hours of high-stakes argument that could set the stage for an eventual showdown at the US Supreme Court.

A three-judge panel of the Ninth US Circuit Court of Appeals in San Francisco must decide whether a federal judge was correct when he ruled in August that the US Constitution protects the right of gay and lesbian couples to marry.

The federal judge said a state effort to restrict marriage to heterosexual couples “unconstitutionally burdens the exercise of the fundamental right to marry” guaranteed to all persons.

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The case has national implications because if the US Constitution protects a fundamental right to gay marriage, no state would be permitted to limit marriage to only those of different genders.

Currently, 45 states have laws or constitutional provisions restricting marriage to one man and one woman. Five states – Massachusetts, Connecticut, Iowa, New Hampshire, and Vermont – and the District of Columbia recognize same-sex marriage.

In their appeal to the Ninth Circuit, supporters of the ban argue that the federal judge ignored a long line of existing legal precedents upholding regulation of marriage as between a man and a woman.

“Every appellate court, both state and federal, to address the validity of traditional opposite-sex marriage laws under the United States Constitution has upheld them,” writes Charles Cooper in his brief to the court.

Opponents of the ban on gay marriage counter that recent decisions by the US Supreme Court have undercut the vitality of those earlier decisions.

“Fourteen times the Supreme Court has stated that marriage is a fundamental right of all individuals,” writes Theodore Olson in his brief opposing the ban.

At the center of the case is a state-wide ballot initiative called Proposition 8. The measure amended the state constitution to read: “Only marriage between a man and a woman is valid and recognized in California.”

The ballot initiative came in reaction to a California Supreme Court decision in 2008 striking down a state law – passed by voter initiative in 2000 – that restricted marriage to opposite-sex couples. The California high court ruled that the restriction violated the state constitution.

Opponents of gay marriage responded with another ballot initiative (in November 2008) seeking to explicitly spell out in the California constitution that marriage is between a man and a woman. The measure passed with 52 percent of the vote, effectively overruling the 2008 state supreme court decision.

The current case before the Ninth Circuit involves a lawsuit filed by a gay couple and a lesbian couple challenging Proposition 8 on grounds that it violates their rights under the US Constitution to due process and equal treatment.

Lawyers for the couples say gay marriage bans are similar to state statutes that once outlawed interracial marriage. Those measures were declared unconstitutional by the US Supreme Court in 1967.

“There is no legitimate interest that is even remotely furthered by Proposition 8’s arbitrary exclusion of gay men and lesbians from the institution of marriage,” Olson writes.

Cooper disagrees. He says a governmental preference for marriage between heterosexual couples “serves society’s existential interest in maximizing the likelihood that children are produced and raised in a stable, enduring family environment by the couple that brought them into the world.”

Olson counters that gay and lesbian couples are permitted to adopt children, and that children raised by same-sex parents fare just as well as children raised by their biological parents.

The US Supreme Court has never directly addressed the gay marriage issue. In 1972 a similar case reached the high court on appeal.

It involved two Minnesota men challenging a state law that barred them from marrying. They argued that they had a fundamental right to marry and that state laws that restricted marriage to opposite-sex couples were irrational and discriminatory.

The Minnesota Supreme Court rejected the argument. “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”

The court added: “This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation.”

When the appeal reached the US Supreme Court in October 1972, the justices rejected it in a brief order. “The appeal is dismissed for want of a substantial federal question,” the court declared.

“Not a single justice found the couple’s constitutional claims – the same ones at issue here – substantial enough even to warrant plenary review,” Cooper says in his brief.

Olson replies that since the 1972 Minnesota case the Supreme Court has handed down important decisions in 1996 and 2003 broadening the protection of gay rights.

In 2003, the high court struck down an anti-sodomy law in Texas. In the majority opinion, Justice Anthony Kennedy noted that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”

He said the choices people make in these areas are central to personal dignity, autonomy, and liberty. Kennedy added: “Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”

Olson cites the passage as proof of high court support for gay marriage.

In contrast, Cooper quotes a passage on the last page of Kennedy’s decision. “The present case does not … involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” it says.

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