A three-judge panel hearing oral
arguments on Monday in the appeal of California's Proposition 8
hinted that they will support a narrow ruling against the gay
The appeal before the Ninth U.S.
Circuit Court of Appeals in San Francisco comes after U.S.
District Judge Vaughn R. Walker ruled the law unconstitutional in
The court first examined whether
ProtectMarriage.com, the conservative group that put Proposition 8 on
the ballot, and Imperial County have the legal authority, or
standing, to appeal Walker's ruling. The groups intervened in the
case after Governor Arnold Schwarzenegger and governor-elect Jerry
Brown, as attorney general, refused to defend the law in court. In
his ruling, Walker said he doubted the group's legal standing because
they are not directly affected by the law.
Charles Cooper, a lawyer for the
defense, argued that society has an interest in supporting
relationships that can bear children.
“When a relationship between a man
and a woman becomes a sexual one, society has a vital interest,” he
“That sounds like a good argument for
prohibiting divorce,” Judge
Stephen Reinhardt responded. “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?”
The judge's questions suggested they
are considering a narrow ruling against the ban. One that overturns
Proposition 8 without directly impacting similar bans in other
“All three judges seemed genuinely
interested in a narrow framing of the case – as one about whether
California has a legitimate interest in taking away the label
'marriage' from lesbian and gay Californians while leaving intact a
comprehensive domestic partnership regime that provides the rights
and benefits of marriage,” Doug
NeJaime, an associate professor at the Loyola Law School, said.
Ted Olson, an attorney for the
plaintiffs, indulged the court by saying he would be satisfied with a
ruling that struck down Prop 8 as unconstitutional because it ended a
pre-existing right. Prop 8 overruled a 2008 state Supreme Court
decision that legalized gay marriage for a brief time. Only one
other state, Maine,
might be impacted by such a narrow ruling.
“If this less sweeping, more
California-centric understanding of the case prevails at the Ninth
Circuit, the U.S. Supreme Court would be directly presented with a
way to rule in favor of lesbian and gay equality while leaving intact
the discriminatory laws of the majority of the states. The bigger
question of a nationwide right to marry for same-sex couples would
continue to wait for its day in court,” he added.