Legal Standing Among Issues In Proposition 8 Appeal

California's ban on same-sex marriage is now in the hands of federal judges. The 9th Circuit Court of Appeals heard Monday from those who want to uphold the state's constitutional amendment banning gay marriage and those who say doing so violates equal protection for gays and lesbians.

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STEVE INSKEEP, host:

Let's go next to California, where a ban on same-sex marriage, known as Proposition 8, is now in the hands of a federal appeals court. California voters approved this ban two years ago, but a lower court struck it down. The 9th Circuit Court of Appeals yesterday heard more than two hours of arguments in San Francisco.

NPR's Richard Gonzales has our report.

RICHARD GONZALES: The hearing was unusual in a few ways. It ran long, as a three-judge panel heard different teams of lawyers argue constitutional and arcane procedural issues. And it was televised, giving the public a look into how an appellate court works.

Attorney Charles Cooper, who represents the sponsors of the gay marriage ban, says the lower court judge was wrong to overturn Prop 8 because society should protect the traditional definition of marriage.

Mr. CHARLES COOPER (Attorney): 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.

GONZALES: Cooper said that society has no particular interest in a platonic relationship between a man and a woman, but it does when that relationship becomes sexual.

Mr. COOPER: Its vital interests are actually threatened by the possibility that an unintentional and unwanted pregnancy - children raised in that circumstance have poor outcomes...

Judge STEPHEN REINHARDT (9th Circuit Court of Appeals): That sounds like a good argument for prohibiting divorce, but I...

(Soundbite of laughter)

GONZALES: That was Judge Stephen Reinhardt, the court's most liberal member, who wondered why two males or two females can't marry and raise happy and healthy children. Still, Cooper insisted, Californians have a rational basis for preserving traditional marriage.

He went on to say the question is whether the voters of California have the right to define the institution for themselves through the democratic process as they did when they voted to ban gay marriage.

Mr. COOPER: Whether our constitution takes that issue essentially out of their hands and decides it for them.

Judge MICHAEL HOPKINS (9th Circuit Court of Appeals): Could the people of California reinstitute school segregation by a public vote?

GONZALES: That's Judge Michael Hopkins, who is considered a moderate on the court.

Mr. COOPER: No, Your Honor.

Mr. HOPKINS: Why not?

Mr. COOPER: Well, Your Honor, that would be inconsistent.

Mr. HOPKINS: With what?

Mr. COOPER: With the United States Constitution.

GONZALES: Arguing against Prop 8 was conservative attorney Ted Olson. He said Prop 8 is a violation of the rights of due process and equal protection and he reminded the court that gay marriage was legal for a brief period in California before Prop 8 was approved.

Mr. TED OLSON (Attorney): This proposition marginalized and stripped over a million gay and lesbian Californians of access to what the Supreme Court of the United States has repeatedly characterized as the most important relation in life.

Mr. REINHARDT: Mr. Olson, you do think there's a difference between taking the right away and not affording it in the first place?

Mr. OLSON: Yes, we do, Judge Reinhardt.

GONZALES: Even before the three-judge panel will decide whether Prop 8 is constitutional or not, it first has to consider whether the proponents have the legal authority or standing to bring the appeal in the first place. California's current governor, Arnold Schwarzenegger, and incoming Governor Jerry Brown both declined to defend Prop 8, leaving that job to its sponsors. In remarks after the hearing, David Boies, another attorney fighting Prop 8, said the sponsors came up short.

Mr. DAVID BOIES (Attorney): The difficulty that the proponents of Proposition 8 had, even at the beginning on the so-called standing issue, was that none of them could come forward with any harm, any concrete harm that they've suffered.

GONZALES: Any ruling by the Ninth Circuit is not expected until next year, and whatever the decision by this three-judge panel, the loser is likely to ask for another hearing by a larger panel of appellate judges.

Richard Gonzales, NPR News, San Francisco.

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