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Proposition 8 revisited: Televised gay marriage hearing begins in Calif. court

By Jerry Markon
Washington Post Staff Writer
Monday, December 6, 2010; 7:59 PM

The national debate over gay rights moved to a California courtroom on Monday, with lawyers squaring off before federal judges over whether the state's ban on same-sex marriage violates the U.S. Constitution.

In the first appellate court hearing on California's landmark Proposition 8, Washington lawyer Charles J. Cooper urged a three-judge panel to keep in place the ban on same-sex marriage. A federal judge in August struck down the voter-approved prohibition as unconstitutional.

"The traditional definition of marriage has existed throughout the existence of this country,'' Cooper told the panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco. "It has been the governing definition and understanding of marriage in this state since its founding and basically throughout the country and throughout the world, for all time.''

In a passionate rebuttal, lawyer Theodore B. Olson said Proposition 8 has "marginalized and stripped over a million gay and lesbian Californians of access to what the U.S. Supreme Court has repeatedly characterized as the most important relationship in life.

"There can be no doubt that it is discriminatory and no doubt that it does great harm,'' said Olson, a longtime conservative luminary who formed an odd-couple partnership with liberal trial lawyer David Boies in taking on the ban.

The legal showdown came amid a broader debate over the rights of gays to marry and serve openly in the military playing out in recent months in Congress and courtrooms.

Legal observers expect that the California case will end up before the Supreme Court, which has never directly addressed the question of same-sex marriage. Such unions are legal in five states and the District.

After the nation's first federal trial on same-sex marriage, Judge Vaughn R. Walker ruled in August that Proposition 8 violates the constitutional right to equal protection. The decision set off celebrations among gay rights activists and others and drew condemnation from conservative activists.

"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," wrote Walker, chief judge of the U.S. District Court for the Northern District of California in San Francisco.

In 2008, 52 percent of California voters approved Proposition 8 as an amendment to the state Constitution. Polls show that Americans have become more accepting of same-sex marriage in recent years, but every time voters have been asked to decide on the issue, they have defined marriage as a union between one man and one woman.

Days after Walker's decision, the 9th Circuit ruled that California's ban on same-sex marriage would remain in place while the case was appealed. That ruling dashed the hopes of hundreds of same-sex couples who had planned to quickly wed.

Even the makeup of the appeals court panel has been sensitive. Stephen R. Reinhardt, one of the judges who heard Monday's argument, came under fire from conservatives in recent weeks because his wife heads the Southern California chapter of the American Civil Liberties Union. Supporters of Proposition 8 sought to remove Reinhardt from the case, arguing that the ACLU has participated in the lawsuit over the ballot measure.

Reinhardt, an appointee of President Jimmy Carter, declined to recuse himself, saying he could be impartial. He led the questioning of Cooper at Monday's argument, suggesting at one point that Proposition 8 faced constitutional problems because it had been motivated by "bias" against gay men and lesbians.

The positions of the two other judges - Democratic appointee Michael Daly Hawkins and Republican appointee N. Randy Smith - were less clear on Monday. It is uncertain when the panel will issue a decision. The losing side can appeal to a larger group of 9th Circuit judges or directly to the Supreme Court.

Cooper, who was a Justice Department official in the Reagan administration, said the traditional definition of marriage must be upheld because it is essential for procreation. "The issue is a momentous one and it goes to the very nature of the nation,'' he told the judges. "Society needs the creation of new life for the next generation.''

Olson, who was President George W. Bush's solicitor general, countered that California "has engraved discrimination on the basis of sex and sexual orientation into its fundamental governing charter . . . it cannot be justified under any standard of constitutional analysis.''

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