Gay Marriage Hearing Begins In Calif. Court

Same-sex marriage was before a federal appeals court in California on Monday. Judges from the 9th Circuit Court of Appeals heard arguments about whether the state's constitutional amendment banning same-sex marriage violates federal equal protection laws. Reporter Scott Shafer of member station KQED was in the courtroom during Monday's hearing and talks with NPR's Melissa Block about the arguments.

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MELISSA BLOCK, host:

There was a key hearing in the fight over same-sex marriage today. Three federal judges heard arguments over California's constitutional amendment which recognizes marriage only between a man and a woman. That was passed two years ago as a ballot measure called Proposition 8.

A lower court later overturned it, saying it deprives gay couples of constitutional rights to equal protection. Well, today, a three-judge panel heard arguments on both the merits of the case and who has legal standing to appeal any decision.

Scott Shafer of member station KQED in San Francisco was in the courtroom today. And, Scott, why don't we start with the constitutional issues first: What are the legal arguments of those who favor the ban on same-sex marriage?

SCOTT SHAFER: Well, Melissa, the supporters of the ban on same-sex marriage say that the trial court judge, Vaughn Walker, erred. He made a mistake when he ruled that there's a fundamental right to marriage in the Constitution that applies to same-sex couples. And today they reiterated those points that they made at the trial earlier this year, that there is long history and tradition of marriage being between one man and one woman. And also that it's the foundation of responsible childrearing and stable families, and that voters have the right to limit or define marriage in that way if they want to.

Now, Charles Cooper was representing the proponents of Proposition 8, ProtectMarriage.com, and this is how he described it.

Mr. CHARLES COOPER (Lead Counsel, ProtectMarriage.com): You are left with a word, but a word that is essentially the institution. And if you redefine the institution, if you redefine the word, you change the institution.

SHAFER: And Cooper went on to say that that gives voters a very rational reason for limiting marriage to one man and one woman. He went on to say also that Proposition 8 was not based on animosity or prejudice toward gay people, that even some people who support gay rights supported Proposition 8 in the past. In fact, they've referred to President Obama, who has said that he's not sure he supports gay marriage.

BLOCK: And, Scott, what were the arguments today from those who favor same-sex marriage?

SHAFER: Well, Theodore Olson did most of the oral arguments today for the proponents of gay marriage, and he had pointed out that the Supreme Court in the past many, many times has said that marriage is a fundamental right, that it's the most intimate relationship that two people can have, and that it's covered under the Equal Protection and Due Process Clauses of the 14th Amendment. And he said that when you pass a law preventing one group from accessing that institution of marriage, that you do great harm to them by, essentially, diminishing their humanity. And Olson who, as I said, is the attorney for these two same-sex couples described it this way.

Mr. THEODORE OLSON (Attorney): California has built a fence around its gay and lesbian citizens, and it's built a fence around the institution of marriage which the Supreme Court says, not based upon sex or appropriation or anything else, is the most important relation in life.

SHAFER: And Olson went on to say that if you keep them inside that fence, you're withholding basic rights from them, and you can't do that.

BLOCK: Okay. Scott Shafer of member station KQED wrapping up arguments today at a hearing before California's 9th Circuit Court of Appeals. Scott, thanks very much.

SHAFER: Thank you.

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