Proposition 8 Appeal Hearing Adjourns

Monday, the Los Angeles Times reports, a hearing before the Ninth United States Circuit Court of Appeals in San Francisco went over its scheduled two hour time limit, proponents and opponents of California’s gay marriage ban arguing over whether Proposition 8 violated the Constitution and whether anti-gay marriage activists hold legal standing to make their case. The hearing is an appeal of a ruling in August by Justice Vaughn Walker that regarded the 2008 ballot measure that effectively eliminated the right of gay men and women to marry in the state unconstitutional. Monday, Charles Cooper, an attorney who argued in favour of Proposition 8 reiterated the now familiar refrain that marriage exists solely for society to recognise relationships between a man and woman that can lead to procreation, Cooper saying “When a relationship between a man and a woman becomes a sexual one, society has a vital interest.” Judge Stephen Reinhart, who last refused a request to recuse himself, said in response “That sounds like a good argument for prohibiting divorce, but how does it relate to having two males or two females marry each other and have children as they have in California? I don’t understand how that argument says we ought to prohibit that?” Judge N. Randy Smith, regarded as the most conservative of three judges, asked that in California, since same sex couples have all the rights of marriage except the word “marriage.” Given that, he asked, how does Proposition 8 propose to protect marriage, to which Cooper answered “You are left with a word, but a word that is essentially the institution.” All three justices questioned anti-Proposition 8 attorney David Boise on who holds legal standing to appeal Judge Walker’s lower-court ruling striking down the gay marriage ban. They noted that both Governor Schwarzenegger and Attorney General Jerry Brown (now the governor-elect) declined to appeal Walker’s decision, and important point since a majority of California’s electorate voted in favour of Proposition 8. Judge Smith said “My problem is, in fact, the governor’s and the attorneys general actions have essentially nullified the considerable efforts that were made on behalf of the initiative,” observing that since neither Schwarzenegger nor Brown had the power to veto the proposition when it was approved by voters, by declining to the appeal the legal judgement, were they not in effect vetoing it?