Gay Marriage Opponents Ask Appeals Court to Reinstate 2008 Ban - BusinessWeek

December 06, 2010, 1:12 PM EST By Pamela A. MacLean

Dec. 6 (Bloomberg) -- Supporters of a ballot measure in California that outlawed gay marriage urged a federal appeals court today to overturn a ruling that declared the law unconstitutional.

Proponents of the voter-approved 2008 state constitutional amendment banning same-sex weddings contend traditional marriages protect society’s “vital interest” in reproduction and childrearing. U.S. District Judge Vaughn Walker in San Francisco struck down Proposition 8 in August, saying the measure violated the constitutional rights of gay people to equal protection and due process.

The case before Walker was the first to go through a federal trial testing whether same-sex unions are protected by the U.S. Constitution. A three-judge panel of the U.S. Court of Appeals in San Francisco is hearing arguments today in a case that may reach the U.S. Supreme Court.

The city of San Francisco and gay couples from Berkeley and Burbank sued in federal court to strike down Proposition 8, which was passed by 52 percent of voters after same-sex marriages were legalized by the California Supreme Court in a 4- 3 decision in May 2008.

Proposition 8 backers say the desire of gays and lesbians to marry is outweighed by the state’s interest in promoting child rearing through traditional heterosexual marriages.

They said in court papers that before recent movements to include same-sex relationships in the definition of marriage, “it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.”

Same-sex marriage supporters have countered that the Constitution doesn’t permit unequal treatment under the law.

‘Responsible Procreation’

They contended in court filings that the “responsible procreation” justification can’t pass constitutional muster as a means to create a separate classification of relationships. They wrote that Proposition 8, while banning same-sex marriage, “had no effect on legal regimes governing parentage and childrearing in California.”

After the January trial over Proposition 8, Walker concluded in August that San Francisco and the gay couples had demonstrated by “overwhelming evidence” that Proposition 8 violates constitutional rights. He prohibited California from enforcing the ban on same-sex marriage.

The appeals court put Walker’s decision on hold temporarily, barring additional gay marriages in California at least until after the panel rules.

18,000 Gay Couples

About 18,000 gay couples married in California before voters passed Proposition 8. As of 2006, there were an estimated 109,000 gay couples in California, more than any other state, according to U.S. Census data compiled by the University of California, Los Angeles.

Some 36 states have passed state laws or constitutional amendments to ban same-sex marriage. Since California approved its ban in 2008, Iowa, Vermont, New Hampshire and Connecticut have legalized same-sex marriage. Massachusetts did so in 2004.

The appeal raises a procedural issue that could sway the outcome. Both California Governor Arnold Schwarzenegger and Attorney General Jerry Brown declined to defend Proposition 8 in court. The measure’s campaign organizers from ProtectMarriage.com moved in to defend the amendment.

Walker said in his ruling that he doubted supporters of the ban could proceed on appeal. He said they don’t have anyone officially representing the state of California on their side and therefore lack legal standing to pursue the case.

‘State’s Interest’

The proponents say they are acting as “agents for the people” of California and as such are legally permitted to “assert the state’s interest,” according to a court filing.

Imperial County in Southern California filed an appeal jointly with marriage ban supporters, raising an additional question of whether a local government entity can act on behalf of the state.

The three-judge appeals panel set aside the first hour of today’s two-hour proceeding to deal with so-called standing issues.

The three appellate judges, selected by random drawing, are Stephen Reinhardt, who was appointed to the court in 1980 by President Jimmy Carter; Michael Daly Hawkins, appointed by President Bill Clinton in 1994; and N. Randy Smith, appointed by President George W. Bush in 2007.

The case is Perry v. Schwarzenegger, 10-16696, U.S. Court of Appeals for the Ninth Circuit (San Francisco.) The district court case is Perry v. Schwarzenegger, 09-02292, U.S. District Court, Northern District of California (San Francisco).

--With assistance from Karen Gullo in San Francisco. Editors: Peter Blumberg, Michael Hytha

To contact the reporter on this story: Pamela A. MacLean at pmaclean@pacbell.net.

To contact the editor responsible for this story: David E. Rovella at drovella@bloomberg.net.

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